Trials@uspto.gov
`571-272-7822
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`Paper # 36
`Entered: October 6, 2020
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
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`FACEBOOK, INC., INSTAGRAM, LLC,
`and WHATSAPP INC.,
`Petitioner
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`v.
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`BLACKBERRY LIMITED,
`Patent Owner.
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`__________
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`IPR 2019-00899
`Patent 8,301,713 B2
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`__________
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`Record of Oral Hearing
`Held: July 9, 2020
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`__________
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`Before MIRIAM L. QUINN, ROBERT L. KINDER, and AARON W.
`MOORE, Administrative Patent Judges.
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`571-272-7822
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`Paper # 36
`Entered: October 6, 2020
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
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`FACEBOOK, INC., INSTAGRAM, LLC,
`and WHATSAPP INC.,
`Petitioner
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`v.
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`BLACKBERRY LIMITED,
`Patent Owner.
`
`__________
`
`IPR 2019-00899
`Patent 8,301,713 B2
`
`__________
`
`Record of Oral Hearing
`Held: July 9, 2020
`
`__________
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`
`
`Before MIRIAM L. QUINN, ROBERT L. KINDER, and AARON W.
`MOORE, Administrative Patent Judges.
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`IPR 2019-00899
`Patent 8,301,713 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`MARK R. WEINSTEIN, ESQ.
`HEIDI L. KEEFE, ESQ.
`Cooley, LLP
`3175 Hanover Street
`Palo Alto, California 94304-1130
`(650) 843-5007 (Weinstein)
`mweinstein@cooley.com
`hkeefe@cooley.com
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`ON BEHALF OF THE PATENT OWNER:
`
`
`KIM LEUNG, ESQ.
`MICHAEL T. HAWKINS
`Fish & Richardson, P.C.
`12860 El Camino Real, Suite 400
`San Diego, California 92130
`(858) 678-4713 (Leung)
`leung@fr.com
`hawkins@fr.com
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`The above-entitled matter came on for hearing on Thursday,
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`July 9, 2020, commencing at 1:00 p.m. EDT, via Video Teleconference.
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`P-R-O-C-E-E-D-I-N-G-S
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`1:31 p.m.
`JUDGE MOORE: We are here for a hearing in our case IPR
`2019-899, Facebook, Inc., Instagram, LLC, and WhatsApp Inc. versus
`Blackberry Limited.
`I am Judge Moore. Judges Quinn and Kinder are also present by
`video. Can we have appearances for the Petitioner, please?
`MR. WEINSTEIN: Yes, Your Honor. This is Mark Weinstein
`from Cooley for the Petitioner, and on the line with me is Heidi Keefe. She
`is lead counsel. And also just for the record, Nikki Vo is also on the line
`from Facebook Legal.
`JUDGE MOORE: Thank you. And for Patent Owner?
`MS. LEUNG: Hi, good morning. For Patent Owner, this is Kim
`Leung, and along with me is Michael Hawkins, who is lead counsel on this
`case.
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`JUDGE MOORE: Thank you. A couple of things before we
`begin. Our primary concern here is that we preserve your right to be heard
`in this video hearing, so if at any time you encounter a technical problem
`that is affecting your ability to participate, please let us know right away.
`I’ll ask that you identify yourself for the court reporter each time you
`begin speaking. And also that when you are not speaking, you please mute
`your line.
`When referring to demonstratives, papers or exhibits, please be sure
`that you identify the item, and if appropriate, the page, for the record. I
`will also note that this hearing is open to the public by audio only.
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`And actually, before I forget, because I will probably forget at the
`end, I will ask the parties to stay on the line at the conclusion of the hearing
`in case the court reporter has any questions about spelling.
`Okay, our hearing order granted each side 45 minutes. I will keep
`the time. Please let me know at the beginning of your argument if you
`wish to reserve any time for rebuttal. And with that, Petitioner, you have
`the virtual floor.
`MR. WEINSTEIN: Thank you, Your Honor, and just for the
`record, we would like to reserve 20 minutes of our 45 for rebuttal, which
`would leave us the 25 minutes at this time.
`During this hearing we are going to be referring to Petitioner’s
`demonstratives, and for the record that is Exhibit 1037. And also for the
`record, if we refer to any documents in the record, we are going to be
`referring to the page numbers that were actually affixed by the Petitioner or
`the Patent Owner. Some of these documents have their own original page
`number, so it makes it confusing. We are going to be referring the
`Petitioner or Patent Owner affixed page numbers for all exhibits, and that
`applies to all citations that we provide today.
`Your Honors, referring to the demonstrative Exhibit 1037, slide 3,
`Your Honors instituted IPR on four grounds. The majority of the
`arguments in the papers, and thus the majority of the arguments today, I
`think, are going to focus on the first two grounds.
`And really they come down to two issues. One issue is the claim
`construction question of what the claims require, and the other deals with the
`determining step.
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`Looking at slide 4 now, we start with the claim language, because in
`our view the claim language is dispositive of a lot of the arguments here.
`Claim 1 and all the other independent challenged claims are comprising
`claims; they are open-ended claims. They identify what has to be present,
`either steps, or computer program product, or apparatus elements, to meet
`the claims. They don’t exclude other things that aren’t recited -- that is
`black letter law on what a comprising claim is.
`So if you look at claim 1 there is three steps at the bottom:
`determining that a predetermined duration of time has elapsed, detecting an
`input to an electronic device, and then responsive to that detecting an input,
`outputting the timestamp. It is a system -- whether it is an infringing
`system or a prior art system -- meets those three elements, if that applies to
`the claim. The fact that it may, or may not output timestamps, at other
`times, or in other circumstances that aren’t in the claim, doesn’t exclude it
`and that is the ultimate distinction between the parties I think on this
`question.
`So I’m going to move directly to slide 6. This is the Board’s
`Institution Decision. And the Institution Decision, preliminarily of course,
`but we agree with it -- so the Institution Decision agreed with our reading of
`the claim, which is that all that is required is that you perform the steps.
`And the responsive to limitation, it is mentioned in the last sentence of slide
`6, refers to the detection of the second message, not the lapse of the
`predetermined time.
`Now Patent Owner makes an argument in their sur-reply that this
`passage of the Institution Decision was about the cancelled claim 1. We
`don’t think that is supportable, that this was clearly referring to the issued
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`claim. The cancelled claim doesn’t even have the word (inaudible) in it.
`That language doesn’t even appear in the claim.
`So let’s move on. We are going to move directly to slide 9.
`We are going to skip around a lot because we just don’t have the
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`time to cover all the slides that we have here. And slide 9 represents our
`attempt to distill what we think is the only textual basis for their argument.
`In terms of -- before getting into the prosecution history of specification --
`what do they say is actually in the claim that they say imposes this
`requirement?
`And you can see in slide 9 -- there is a little bit of sleight of hand
`here. They cancelled -- they are using claim 2 to rewrite claim 1. Claim 1
`recites the step of detecting input. Claim 2 says, wherein the input is
`resumption message. They have rewritten the claim language to say
`detecting a resumption message. We think that is actually wrong because
`the claim 1 still exists, it is still incorporated by reference, and the claim still
`requires detecting input. The reading reads out the word input and
`changes the language of the claim. If they wanted the claim to say --
`(Simultaneous speaking.)
`JUDGE MOORE: What practical difference --
`MR. WEINSTEIN: -- go ahead sir.
`JUDGE MOORE: What practical difference does that make for us?
`What is the difference?
`MR. WEINSTEIN: That is a great question, Your Honor. We
`don’t think it makes a practical difference. They hinge a lot of their
`argument on that, but as we are going to explain -- we actually don’t think it
`makes a difference if the claim says detecting an input, wherein the input is
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`the resumption message, or detecting resumption message, but this is really
`the crux of their textual argument.
`And if we go to the slide – I’m going to move directly to slide 13, I
`think Your Honor’s argument is, or Honor’s comment is apropos. Slide 13,
`on the right, we show the screenshot on the right, from our petition, you
`know, built in accordance with the teachings of Crawford and Watson, and
`as you can see, there is a second message there, aim running man, at 3:12
`p.m., there is a period of interruption of two minutes, that message is
`indisputably a resumption message. It is a message after a period of
`interruption. And the parties have agreed that that is what the term means.
`Your Honors have adopted that construction in the Institution Decision, and
`nobody has actually argued it should be changed.
`So at the point in this figure when it detects the message, aim
`running man, it has detected a resumption message. Whether the claim
`says detecting an input, wherein the input is the resumption message, or
`detecting resumption message, either way that is a resumption message.
`JUDGE QUINN: Well what else --
`(Simultaneous speaking.)
`MR. WEINSTEIN: Now Patent Owner’s argument --
`JUDGE QUINN: What else could the input be according to the
`specification?
`MR. WEINSTEIN: In it -- well the input could be -- well for
`example, in the context of a resumption message in the way the claim is
`written, you could have a message that happened before the expiration of the
`period of time. So for example, if you had a message right after 3:10, that
`may not be a period of interruption because a message comes right after it.
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`But to be clear though, the resumption message is not distinguished
`based on its composition or its content. In other words, the message, good
`bye, could be a resumption message, or another message. The only thing
`that distinguishes it in the claim construction is it has to occur after some
`period of interruption. That is the only thing that distinguishes it from any
`other kind of message.
`So in this slide 13, Your Honor, what you see is there is the period of
`interruption of two minutes. Under the instituted combination with Stevens
`and Snader, under this instituted combination the system would have
`detected a lack of communication and it would have issued a heartbeat
`message in all the things that Snader talks about to try to restore the
`connection.
`In any event, by the time the message comes in at 3:12, the system
`knows it is a resumption message because it has already gone through the
`Snader heartbeat technique. So again, we think the plain language is
`satisfied either under the plain language or the way that they are trying to
`construe it.
`So I don’t want to spend too much time -- I want to get to the
`prosecution history where I think, really, the arguments really rest. And I
`want to jump to slide 17. Slide 17 is their description of claim 1. This is
`the cancelled claim 1.
`I won’t spend that much time on this because I think they have very
`wisely moved away from claim 1. This was a big part of their Patent
`Owner response, was to use this language, but as we now know, this was --
`all these arguments about claim 1 refer to a claim that explicitly required the
`display of a timestamp only when the time period had elapsed. It asked
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`for an explicit claim requirement -- they cancelled that claim. And so the
`description of claim 1 doesn’t support their argument. In our view, it
`supports our argument.
`You look at claim 18 – I’m sorry -- slide 18, that is the original claim
`1 that was cancelled. And if you look at the highlighted language, you can
`see that they explicitly claimed it. Now Patent Owner’s sur-reply and their
`slides don’t talk about this claim, and it is understandable why. But when a
`person of ordinary skill in the art reads the file history as a whole, which
`Phillips says you have to read the intrinsic record as a whole, they would see
`that the Patent Owner actually had a claim reciting the feature that they now
`claim is in the issued claims, and they specified in clear, precise and specific
`terms. And they cancelled that claim, at least in this application, they
`cancelled that claim.
`And so I think this is going to color all of their arguments about the
`rest of the file history because the patent team knew how to claim this
`requirement clearly. If they wanted this to be part of the claims at issue,
`they knew how to do it, they actually had it in the claims that they
`prosecuted.
`So I want to move to slide 19. Now we are getting into the portion
`of file history that discusses the actual claims that ultimately issued.
`JUDGE QUINN: So before you go there -- just for housekeeping
`here -- you are not relying on any kind of disavowal or prosecution history
`estoppel with regards to the claim 1 that was not pursued?
`MR. WEINSTEIN: No. We are actually using it at the opposite.
`We are using it to show that there is no disavowal or disclaimer with respect
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`to the issue claims. But we are aligning the same language in the claim
`language, Your Honor.
`So when you look at claim -- when you look at slide 19, this is the --
`the right side is what I want to focus on. And the Patent Owner makes a lot
`of arguments about this. On the right side of 19, this is referring to Exhibit
`2002, at 549 to 550. It says there, Applicant has shown above that
`Appleman and Yamada, both individually and in combination, failed to
`teach or suggest selectively displaying time information.
`We don’t disagree that that is a referring back to the argument by
`claim 1 -- we are not disagreeing with that. But that is simply a statement
`about the prior arts. They are not saying that that is required by claim 1.
`We don’t -- by claim 13. We don’t think that is a disavowal. Look at the
`very next sentence. With respect to claim 13, Applicant respectfully
`submits that Appleman and Yamada failed to teach -- and then it reproduces
`the claim language almost verbatim.
`You are going to see this pattern in the file history. These
`prosecutors were smart, they did their job the right way. When they are
`talking about what the claim required, they let the claim language do the
`talking. They don’t use loose language. In every element of the file
`history when they talk about the claims, they are using the exact claim
`language or a very close paraphrase of it.
`So there is no disclaimer here. In fact, if anything, this is making
`clear that we are not distinguishing based on the selectivity issue, we are just
`claiming -- we are not distinguishing based on that. We are distinguishing
`based on the plain language of the claim.
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`If we go on, I won’t go through the slides 20 and 21 because there is
`a second office action, and those arguments are repeated a second time.
`JUDGE MOORE: So one question.
`(Simultaneous speaking.)
`MR. WEINSTEIN: In the sur-reply they mentioned --
`JUDGE MOORE: Sorry. One question -- this is Judge Moore --
`about claim 19, did Appleman and Yamada together teach displaying or
`outputting a timestamp? I mean, was there a second timestamp?
`(Simultaneous speaking.)
`MR. WEINSTEIN: I believe they did. I think what they were
`lacking was the timing aspect of it, of the determining steps. I think that’s
`what they were lacking. I think Appleman does disclose the outputting of
`the timestamp.
`So if we go on to -- so it is undisputed that these claims were
`cancelled. Claim 1 was cancelled and all -- claims 1 through 12 were
`cancelled. Parenthetically -- they didn’t go away, they have eight issued
`patents in this portfolio. This language shows up in later patent
`applications that ultimately were issued, including one they issued on
`Tuesday, two days ago. So it is not gone, but this language was gone for
`purposes of this particular patent.
`So there is nothing in the prosecution history that we think
`constitutes a disclaimer or even comes close to it. So let’s move to the
`specification because that is their next argument.
`If you look at slide 28, we will just get right to the nub of it here.
`Slide 28 has this language that – we’ve seen this a lot -- and some people
`call it boilerplate -- but it is at the end of most patents --no all of them, but
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`some. And I think this is a particularly clear statement. And it says here,
`accordingly -- this is reading from column eight, line 39 through 46 of the
`patent, the particular arrangements disclosed are meant to be illustrative only
`and not limiting as to the scope of the invention, which is given the full
`breadth of the claims appended. And this isn’t just boilerplate. If you
`read the entire patent application, this patent is written with open-ended,
`permissive language. If you look for the word must, M-U-S-T, you won’t
`find it. Require, you won’t find it. Mandate, you won’t find it. The
`word need, N-E-E-D? It appears three times in the patent. But it is either
`proceeded or followed by the word not, need not or not needed.
`My point here is that everything in this patent is permissive.
`Everything is a may. Everything is a can’t. Everything is an aspect of the
`invention -- an embodiment, an example. This -- nothing in this patent
`displays the kind of language you see in SciMed, Impro, On Demand, where
`you see a very strong statement in the specification that, no matter what the
`claims say, the invention has to have these features. They can’t identify
`any statements like that. They just simply don’t exist in the specification.
`JUDGE QUINN: But it seems clear to me though that when you
`read the specification, you do get a sense of what the Patent Owner was
`trying get at -- or the Appellant -- or the Applicant, was getting at, which is
`the aspect of minimizing the use of timestamps, and using them for the
`purpose of having the users -- giving the users some information with which
`to determine the gap between two messages.
`And that sentence at the very end seems to capture that those
`timestamps that are displayed could change in format, but I don’t think it
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`reverses what it said about displaying those timestamps under specific
`circumstances. How would you otherwise read it?
`MR. WEINSTEIN: Well what it says is that the claim limitation
`specifies when a timestamp has to be displayed. We don’t disagree with
`that. The issue is that the claims don’t specify situations when they are not
`to be displayed. At least not -- the cancelled claims did, but not the issued
`claims.
`As far as the statements in the specification, there are definitely --
`and most of those statements, in fact all of them -- are really in the context of
`handheld electronic device. It is that the claims here don’t even cover a
`handheld device and in the ongoing litigation, they are accusing a Messenger
`product that can be viewed on a screen as large as the one Your Honors are
`looking at right now. But the statements in the specification about
`avoiding clutter and avoiding space, they are aspirational statements, they
`are not statements that get you to a disclaimer and -- one relevant case on
`that is the Sony versus Thorner case. It’s at 669 F.3d at 1366, and they say
`mere criticism of a particular embodiment encompassed in a plain meaning
`of a claim term is not sufficient to rise to a level of a disclaimer disavowal.
`And so I think that is what we have here. The very tepid statements
`about something that is helpful, or something that would be a good part of
`the invention, but not something that rises to the level that it has to be there.
`So I think we have made our case, and I know Patent Owner
`disagrees, that nothing in the claim language requires that a timestamp only
`be up per resumption message, or excludes it in other situations. We want
`to talk briefly though about their other arguments.
`(Simultaneous speaking.)
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`JUDGE QUINN: Let me just -- to close out -- to close out that
`issue for you. You’ve mentioned that statement, the catch-all statement in
`the specification. Is there any embodiment in which we have timestamps
`displayed other than those that result from the interruption?
`MR. WEINSTEIN: Yes, Your Honor. Slide 27 has the
`embodiment from column 8. This is an embodiment -- and we actually
`have it highlighted -- where it says, this is quoting from the patent at column
`8, lines 6 through 25, it says there such timestamps potentially could be
`configured to be output without first detecting a delay or break in the
`conversation.
`So there is an embodiment in the patent where timestamps are output
`for reasons other than the predetermined duration of time. This is -- I agree
`-- this particular embodiment is not claimed. They actually just got an
`allowance from the Patent Office on another patent that covers this. But
`that is not actually in these claims, but it undermines their proposition that
`every single embodiment in this stack necessarily has to only output
`timestamps when the duration of time has passed. That is simply not the
`case. Here is one embodiment that plainly doesn’t actually do that
`whatsoever.
`And if the case law is clear, even if every embodiment did have that
`property, which is nothing, that still wouldn’t be enough to limit the claims
`away from their otherwise plain language.
`So I want to talk about one of the arguments they make. It is --
`there are two arguments they make on the determining step. I’m going to
`jump all the way to slide 39. It is this Ack signal Argument. And the
`arguments morphed, and we are still having difficulty understanding on our
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`end what the actual textual basis in the claim is for what they say is not
`satisfied.
`The way TCP works is that when you send up -- this is all
`undisputed, both parties’ experts agree on this -- when you send a packet to a
`recipient, the recipient sends a packet back with an Ack signal. The Ack
`signal tells the sender, I got your message, you don’t need to retransmit. It
`is undisputed. This is a mandatory requirement of TCP/IP. You can’t
`implement it without this Act Signal.
`Their argument seems to be that when you extend an Ack signal it
`somehow breaks the claim. Now, we’ve been trying to figure out why does
`it break the claim? Our first thought was well the claim says you can’t
`have additional communication during the period of time. And our thought
`was, well, maybe they are saying the Ack signal is additional
`communication. I don’t think they are saying that anymore, Your Honor,
`when I look at their sur-reply. Their expert in the -- their court litigation
`was pretty clear, status messages are not additional communication.
`That doesn’t seem to be their argument. Their argument seems to
`be about timing. They seem to be saying that the problem with the Ack
`signal -- and the Ack signal was just the -- and the evidence is clear, it
`happens a few milliseconds after the, you know, about 50 milliseconds or so
`after the message is received. So recipient receives the message, they send
`back an Ack signal to the sender. The sender gets it. It’s about a 50
`millisecond gap. Their argument seems to be that because the counter
`(inaudible) starts counting 50 milliseconds or so after the message, it is no
`longer determining from the first time.
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`In other words, when Snader’s heartbeat timer is triggered, it is not at
`60 seconds, it’s at 60 seconds and 50 milliseconds. They argued it doesn’t
`meet the claim element because it is not -- because the timer is reset shortly
`after the Ack signal is sent. We have a very simple answer for that. It
`doesn’t matter under the claim. The claim simply says determining that a
`predetermined duration of time has passed is all it requires. If it determines
`-- if it determines that 60 seconds has passed, it has met -- it can make the
`determination -- 61 seconds or 60 minutes --
`(Simultaneous speaking.)
`JUDGE QUINN: Sorry, but the claim -- yes, the claim is a little
`bit more detailed than that, and it is determining the predetermined time has
`passed since the first time.
`MR. WEINSTEIN: Right.
`JUDGE QUINN: And the first time is the time of the
`communication, so Snader is not – Snader’s counter does not care that the
`message or the activity or the packet that it is detecting or not detecting is a
`communication. Then it just happens to be fortuitous that the last thing that
`happened in that link happened to be related to that communication. But
`any packet in between, regardless of whether it is for the message or not,
`will reset the timer, right?
`MR. WEINSTEIN: Well there is a dispute about that because the
`other side happens, I mean that certainly hasn’t been their position, that any
`communication over the line -- their position, at least from litigation is that it
`has to be something akin to a user composed message. But I don’t think
`they have taken a plain position about that here either way. I don’t think it
`is disputed that the Ack signal doesn’t constitute that.
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`But to answer your question, Your Honor, the claim simply requires
`that a predetermined duration has passed since the first time. That happens
`in Snader, because when a message is sent, yes, it is true, the Ack signal gets
`sent back, the counter gets started 50 milliseconds or so after the first time.
`But the claim simply requires that the predetermined duration of time has
`elapsed and to message. At 60 seconds and 50 milliseconds, 60 seconds
`has elapsed.
`To give an analogy, if I go 27 minutes -- two minutes over my time
`today – I’m pretty sure Judge Moore is going to tell me that my time has
`elapsed, even though he told me that two minutes after the time period had
`actually elapsed. So the condition is met whether it is determined at 61
`seconds, 61 minutes or 61 days, is the condition is met either direction.
`JUDGE MOORE: So is the Ack part of the messaging
`communication?
`MR. WEINSTEIN: That is our position, Your Honor. That is an
`area where I think they do disagree with us. Our position is that the
`messaging communication would include the Ack Signal. We have plenty
`of expert testimony about why that would be the case.
`And just so we know, Dr. Chatterjee explains that in his declaration.
`This is Exhibit 1031, paragraph 40, in TCP things are broken up into
`packets. Even if you have a message it is to be broken up into multiple
`packets, so the term messaging communication is broader than just a packet
`or just a single signal or transmission or message. Our position is all of the
`communications and back and forth that is required to get the message from
`point A to point B, that is part of the messaging communications. If Your
`Honors agree with us on that argument, I think that their argument on the
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`Ack signal goes away. Now as far as the typing notification feature, that is
`another argument that they make. It is very similar. I think we’ve
`explained in our papers why that is a sometimes, but not always, argument
`that they are relying on an edge case where a person starts typing a message
`before the one minute time, and they don’t finish it or they don’t send it.
`We have testimony in the record -- it is really not disputed -- that the
`system is capable of determining that the person can start typing a message
`after the one minute period of time. So our position is that the typing
`notification feature doesn’t get you out from the claims. It doesn’t
`distinguish the claims from the prior art.
`And it looks like I have run out of my time. I should, at this point,
`yield to the other side. Unless Your Honors have additional questions.
`JUDGE MOORE: I have you at a minute 50 left on your first 25.
`MR. WEINSTEIN: Okay.
`JUDGE MOORE: It’s up to you though.
`MR. WEINSTEIN: Thank you, Your Honor. I’ll use it because I
`do have to address one very quick issue. There is a new argument in their
`sur-reply. I’m not going to make a big deal about it, but I think I have to
`address it.
`In their sur-reply they make this argument, on pages 22 through 23,
`that there is a buddy notification system in the Crawford reference, and the
`fact that that system tells you a buddy is online -- the argument in the sur-
`reply is because you have that feature in Crawford, it makes the Snader-
`Stevens combination unnecessary.
`I think our response to that, Your Honor, is if you look at the
`disclosure, it is on column 14, line 40. They are talking about a very
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`different feature. They are talking about when you log on to the system, it
`gives you a list of your instant messaging buddies and tells you which one is
`online so that you can figure out who you are going to communicate with.
`It has nothing to do with actually monitoring during a conversation
`that the people are actually still connected. It is all about that initial log in
`and that initial connection.
`(Simultaneous speaking.)
`JUDGE QUINN: Well what I understood from that
`communication, from that argument, is that Crawford already has this
`method by which to determine that there is a break in the communication
`because the other person has logged off the system. So if it is already
`keeping track of the connection with the application, why add another timer
`for the same purpose?
`MR. WEINSTEIN: There are two answers to that, Your Honor.
`First of all, there is nothing -- the way that we’ve mapped it -- the disclosure
`on column 14, line 40, that is talking about communicating with the host,
`which is the server. Under the instituted combination, what happens is,
`there is a direct peer-to-peer TCP connection between the two clients.
`They are actually connected via a direct connection. They are not going to
`the host for purposes of the instant messaging conversation.
`So even if you assumed that this disclosure was somehow relevant to
`staying online or you know, it doesn’t show that it is really being updated, it
`is not relevant to whether there is a connection during the actual
`conversation. But Your Honor, even if that was the case, there is nothing
`in this reference that actually says how to do it. So Stevens and Snader
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`aren’t actually -- you know, that -- Stevens and Snader could still be
`provid
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