Paper No. 35
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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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`GOOGLE LLC,
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`Petitioner,
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`v.
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`HAMMOND DEVELOPMENT INTERNATIONAL INC,
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`Patent Owner.
`___________
`
`IPR2020-00081
`Patent 10,270,816 B1
`___________
`
`Record of Oral Hearing
`Held: March 9, 2021
`_____________
`
`Trials@uspto.gov
`571-272-7822
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`
`
`
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`
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`Before MICHELLE N. WORMMEESTER, AMBER L. HAGY, and
`KRISTI L. R. SAWERT, Administrative Patent Judges.
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________
`
`
`GOOGLE LLC,
`
`Petitioner,
`
`v.
`
`HAMMOND DEVELOPMENT INTERNATIONAL INC,
`
`Patent Owner.
`___________
`
`IPR2020-00081
`Patent 10,270,816 B1
`___________
`
`Record of Oral Hearing
`Held: March 9, 2021
`_____________
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`
`
`
`Before MICHELLE N. WORMMEESTER, AMBER L. HAGY, and
`KRISTI L. R. SAWERT, Administrative Patent Judges.
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`IPR2020-00081
`Patent 10,270,816 B1
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`KEVIN RODKEY, ESQUIRE
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`1875 Explorer Street
`Suite 220
`Reston, VA 2019
`
`
`
`
`ON BEHALF OF PATENT OWNER:
`
`
`JOSEPH OLDAKER, ESQUIRE
`Nelson Bumgardner Albritton, PC
`3131 West 7th Street
`Suite 300
`Fort Worth, TX 76107
`
`
`
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`The above-entitled matter came on for hearing on Tuesday, March 9,
`2021, commencing at 1:00 p.m., EDT, by video/by telephone.
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`IPR2020-00081
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`P R O C E E D I N G S
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`THE USHER: IPR2020-00081 will begin shortly. Hold on,
`
`please.
`
`JUDGE SAWERT: Okay. Thank you. Good afternoon
`everyone. This is a hearing for IPR 2020-00081 between
`Petitioner Google, LLC and Patent Owner Hammond
`Development International, Inc. I am Judge Sawert. With me
`today on the panel are Judge Wormmeester and Judge Hagy.
`Let's start with counsel introductions. Counsel for Petitioner,
`will you please introduce yourself and let us know who will be
`presenting today.
`
`MR. RODKEY: Good afternoon, Your Honors. This is
`Kevin Rodkey with Finnegan, counsel for Petitioner Google and
`I'll be presenting today. Also on the line we have Erika Arner,
`lead counsel for Google, Timur Engin, in-house counsel for
`Google and Yi Yu with Finnegan.
`
`JUDGE SAWERT: Thank you. And for Patent Owner.
`
`MR. OLDAKER: Good afternoon. This is Joseph Oldaker
`of the firm Nelson Bumgardner Albritton, PC, on behalf of
`Patent Owner Hammond Development International. I'm going
`to be arguing today. Also on the line we have lead counsel,
`Andrew Wright from the Nelson Bumgardner Albritton firm.
`
`JUDGE SAWERT: Okay. Thank you. Welcome everyone
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`and thank you for joining us by video. As you know from our
`hearing Order, each side will have 30 minutes to present
`arguments. Petitioner bears the burden of persuasion and will
`proceed first followed by Patent Owner. Petitioner may reserve
`time for rebuttal and Patent Owner may reserve time for
`surrebuttal. Please note that we do not have our automatic
`timekeepers with us today. We'll do our best to keep track of
`time but suggest the parties keep track of time as well.
`
`Please bear with me while I read a few things unique to a
`video hearing. First and most importantly, if at any time during
`this hearing you encounter technical or other difficulties that you
`feel fundamentally undermine your ability to be heard or to
`present your arguments please let us know immediately. You
`may also contact the team members who provided you with the
`connection information today. Second, please mute your
`microphone when you're not speaking and if it's been some time
`since you've last spoken please identify yourself for the court
`reporter. Third, we have access to the entire record including
`demonstratives but so we have a clear record, please identify the
`slide you are referencing or what exhibit or filing you're
`referencing and what page and, I emphasize here, please give us
`a few seconds so that we can locate what you're referencing. Are
`there any questions or concerns at this point? Petitioner?
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`MR. RODKEY: No, Your Honor.
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`JUDGE SAWERT: Patent Owner?
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`MR. OLDAKER: No, Your Honor.
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`JUDGE SAWERT: Okay. With that we'll begin. Mr.
`
`Rodkey, good afternoon. How much time do you wish to reserve
`for rebuttal?
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`MR. RODKEY: Seven minutes please, Your Honor.
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`JUDGE SAWERT: Okay. You have 23 minutes. Please
`proceed.
`
`MR. RODKEY: Thank you, Your Honors, and good
`afternoon. U.S. patent No. 10,270,816 owned by Hammond
`Development and had assumed (phonetic) this IPR is a
`continuation of patents involved in IPRs 2020-00020 and 00080,
`the '483 patent and the '032 patent, on which oral hearing was
`held on January 29th of this year. Like similar (phonetic)
`Hammond patents, the '816 patent is generally directed to an
`automated voice response system. One common example of this
`type of system is when a person calls into an airline help line
`asking to check the status of their delayed flight. As one
`example, the person can use their cellular phone to call the
`airline's hotline and if they're asked by an automated voice
`whether they would like to check the status of an existing flight
`or to book a new flight. The person knowing that they have an
`existing delayed flight and want to check the time say check the
`status of my existing flight. The system receives that response,
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`analyzes it and determines the next follow-up that should be sent
`to the user by voice. And having determined that they want to
`check a flight, the system asks the user for their flight number.
`The person responds with their flight number 1234. The system
`hears that, looks up the current flight time, and says the flight's
`been delayed until 6 p.m. The user, having gotten the
`information they want, hangs up and ends the session.
`
`This technology was commonplace long before the
`Hammond patents and it's merely executing applications
`remotely in response to user questions using voice instead of
`something like touch tone. Hammond says that their
`development in the art was moving some of the processing
`towards the user device, but that too is commonly known in the
`art as shown by the Dodrill and Dhara references raised in this
`IPR and the other related IPR petitions.
`
`While I'm happy to answer any questions the Board has
`about any of the issues raised by Patent Owner, and there are
`many in this IPR, I would like to begin by focusing my time on
`the issues specific to the '816 patent that were not previously
`discussed for the '483 and the '032 patents in the last oral
`hearing, and with that I would like to turn to slide 9 of
`Petitioner's demonstratives.
`
`Slide 9 shows two specific issues for the '816 IPR. They
`both relate to a new reference that was not at issue before, the
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`Creamer reference, and whether a plurality of servers would have
`been obvious on the system side. The first issue: does Gilmore
`and Creamer render obvious the plurality of servers in claim 14
`of the Hammond '816 patent? Hammond argues that Creamer
`doesn't disclose any specifics about the plurality of servers, but
`it doesn't appear to dispute that Creamer does disclose a plurality
`of servers generally on the system side. The correct resolution
`of this is that Creamer does teach distributing processing on this
`system side across a plurality of servers and it would have been
`obvious to distribute applications and the processing of
`applications based on Creamer's disclosure in combination with
`Gilmore. And the second issue is whether combining Gilmore
`and Creamer as in the petition would result in inoperability.
`Hammond's argument is that Creamer is solely a private
`branch exchange or PBX system that has a one phone to one
`server configuration. But the problem with Hammond's argument
`is that that's not the configuration shown in the petition as set
`forth by Petitioner's expert so the correct resolution of this issue
`too is that they, Creamer, doesn't teach that combination, but
`also even if it does, it doesn't result in inoperability, and I would
`like to turn to Petitioner's slide 22.
`
`On Petitioner's slide 22 you see the excerpt from Creamer,
`it's paragraph 25 of Exhibit 1010 and Creamer discloses a
`plurality of servers on the system side in two different ways. In
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`the first sentence it says the IVR system 125 can include one or
`more applications hosted on one or more IVR servers. In
`Creamer those IVR servers are the system side where all of the
`processing occurs in response to the user's questions and where it
`interprets the user's responses. And the second place that
`Creamer discloses a plurality of servers is the second highlight
`on this slide about two thirds of the way down, the paragraph
`where it says the IVR system can alternatively be implemented
`by multiple servers in a distributed fashion. Again, you take the
`one IVR system shown in the figure of Creamer and you
`distribute the processing across multiple servers, a plurality of
`servers.
`
`I think it's worth noting here that also in the fourth line
`from the bottom Creamer explicitly says there are many potential
`configurations for the invention in figure 1 and it's intended to
`be construed as broadly as possible with many possible
`embodiments. Again, this rebuts Hammond's argument that
`there's only one possible way reading this paragraph, because
`Creamer not only gives two different ways of distributing across
`multiple servers but it says that there are many embodiments and
`many potential configurations.
`
`Turning to Petitioner's slide 24, I want to address
`Hammond's motivation to combine arguments because that's
`really the core at the issue here. It's not whether Creamer
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`discloses a plurality of servers -- I think that's pretty clear and it
`is pretty clear from paragraph 25 -- it's whether when you
`combine Creamer with Gilmore as in the petition, that would
`have been obvious. And it would have and here we see that
`Petitioner's and Google's expert explained the motivation to
`combine with Creamer. That's pages 49 to 52 of the petition. He
`provides -- Google's expert provides a very clear statement of the
`combination moving and distributing the processing on Gilmore's
`voice gateway 208 to each of its own servers because that
`provides a more robust system. It prevents software failures. It
`allows more users to use the system at a time because you simply
`have more processing power, and this is supported by other prior
`art references such as the Dhara reference, which distributes the
`processing that's the same processing on Gilmore's voice
`gateway 208 across multiple servers. Dhara gives the example of
`doing that with the test speech system and with the speech
`recognition system, putting those on their own servers as well.
`So Google's expert used that teaching, used that motivation, to
`distribute the processing from the voice gateway across multiple
`servers for the reasons stated within the petition and in his
`declaration.
`
`Hammond's argument is really one of inoperability at the
`end. But again this is not an inoperable combination. It relies
`on the Dahra reference for the motivation and for the teaching
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`that this can be easily distributed across multiple servers. And
`Hammond's argument on inoperability isn't even the combination
`that's put forth in the petition. As I said, the petition distributes
`the voice gateway 208 across multiple servers. Hammond
`instead creates a combination in which it takes a single server
`and basically replicates that server multiple times. Whether
`that's operable or not is irrelevant to the finding of motivation as
`set forth in the petition because the petition's combination
`merely moves some of the processing from one server to another
`which is obvious as a matter of law. It was well known in the
`art. If the Board has no specific questions about the combination
`on claim 14 I would like to turn to some of the other issues that
`were previously mentioned in the previous year.
`
`JUDGE SAWERT: Go ahead, counsel.
`
`MR. RODKEY: Okay. I'd like to turn to Petitioner's slide
`12 and this is the issue of “request.” We talked about this before
`in the last hearing but I think it's worth repeating here. One of
`the issues that Hammond raises is when a request had to be
`computer code instructions only. And on slide 12, we have the
`parties’ constructions. Google believes no construction is
`necessary because the prior art is substantially the same as the
`way request is disclosed in the '816 patent. Hammond asked the
`Board to adopt the District Court's plain and ordinary meaning,
`but then layers on top of that a computer code only instruction
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`level requirement.
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`If you turn to slide 13, here's a flow chart that shows that
`really no matter how you resolve this issue, it's unpatentable
`three of the four ways this can come out. “Request”—four ways,
`two specific terms in the '816 patent. One is a request for
`processing service and one is a request to establish a
`communications session.
`
`Under the request for processing service branch, Gilmore --
`if you agree with Google and you adopt that no construction is
`necessary, then Gilmore teaches a “request” under the plain and
`ordinary meaning of that term. All of Hammond's arguments are
`on the other side, where if you believe that request and request
`for processing service must be computer code, Dodrill renders
`that obvious, and that is where claim 14 of the patent refers back
`to elements 1H and 1I and it's also shown in claims 1 and the
`other independent claims and dependent claims such as
`dependent claim 18, where Dodrill is relied on for that narrower
`construction of request -- for request for processing service.
`
`On the right side we have the term “to establish a
`communication session.” If you agree with Google and you go
`past the no branch, request system is plain. It's used as used in
`the Hammond patents, then the user contacting the IVR system is
`a “request” as used in patents. If you follow the computer code
`side, which is Hammond's construction, that would be a legal
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`error because it's not supported by the disclosure of the '816
`patent.
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`JUDGE SAWERT: Counsel, correct me if I'm wrong but
`my memory is that the addition of computer code instruction
`level is something that Google argued at the District Court. So
`I'm little unclear now how it is legal error to include that portion
`of the definition in the construction of “request” at this point
`when it obviously was not legal error before the District Court,
`or you wouldn't have argued it.
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`MR. RODKEY: I think there's some confusion about the
`terms. That was argued for the term “processing service,” not
`for the term “request.” The District Court did not give a
`construction of request. It actually gave the plain and ordinary
`meaning of request because it was construed as part of these two
`larger phrases. Google argued before the District Court that
`processing service would be a computer process. So I think you
`have to look at it that way instead. We've always applied the
`normal meaning of request.
`
`JUDGE SAWERT: And what is the normal, plain and
`ordinary meaning of request?
`
`MR. RODKEY: It's simply an act of asking for something
`and that's Exhibit 1026, that's a dictionary definition that we've
`put out there and that was what was applied by Google's expert
`in the petition and it's what Google has always maintained as
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`appropriate and that's supported by the disclosure of the '816
`patent if you turn to slide 15.
`
`On slide 15 we have a number of examples from the '816
`patent. They're not exhaustive, but you can see that in the top
`left there's an excerpt from the '816 patent, column 7 line 66 to
`column 8 line 9. The various highlighted parts there talk about
`multiple queries or requests. Simply asking for something, that's
`a query. Again, multiple queries or requests -- that repeats itself
`throughout, and then communicating a request, the box below
`that, column 9 lines 1 to 5, doesn't place any computer code
`boundaries on request either. It's just used in the ordinary
`manner, and then the other three -- I won't read them out for the
`record but they're the same. They equate request as simply
`asking for something. That's the ordinary manner. It's not a
`computer code of level instruction and, if we go back to slide 14,
`I think this is also illustrative to look at the claims themselves as
`well and we have excerpted there independent claims 1 and 14 of
`the '816 patent and we've highlighted all the instances in where
`request occurs.
`
`On the left side in claim 1, the two top instances are the
`first phrase, that request to establish communication session.
`There's nothing limiting that use of request to something that is
`computer code specific. It does talk about packetized voice data.
`That was an obviousness combination that's not disputed by
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`Hammond at this point. The bottom two instances in claim 1 are
`requests for processing service, the other term they use for
`request, and you can see in the second and final use of request
`there's a specific use of request where it's an instruction to
`present a user at least one communication device voice
`representation. So where they intended a narrow definition of
`“request,” such as an instruction which could be computer code,
`that's specifically in claim 1.
`
`In contrast, claim 14, the second uses of “request,” which
`are the requests for processing service, do not have that
`instruction limitation. It's not limited or narrowed in any way by
`the language of the claim. It's used in its ordinary manner which
`is simply asking for something. Claim 18, which is a dependent
`claim, has the narrower definition of request as an instruction
`and so it would be improper to read that into request generally,
`because you have a narrower dependent claim that creates claim
`differentiation.
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`JUDGE HAGY: So counsel, this is Judge Hagy. Would it
`be fair to say then in the context of this patent that “request” is
`broad and that a user may request something by speaking it and
`then the system may also request something else, but the system
`would be using code whereas the user would just be speaking? Is
`that a fair assessment?
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`MR. RODKEY: Yes, Your Honor, that's a fair assessment.
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`We're not saying that the request cannot be code, we're just
`saying that it's not limited to code.
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`JUDGE HAGY: Understood.
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`MR. RODKEY: If there are no -- I have about, it looks like
`about six minutes left of my time. If there are no questions
`about request, I would like to turn to “application, ” which is
`something that really the Board was interested in the last
`hearing.
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`JUDGE SAWERT: Go ahead counsel.
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`MR. RODKEY: If you'll turn to -- if you'll turn to slide 26
`of Petitioner's demonstratives. We have again the constructions
`for applications that have been applied by the parties in this IPR.
`Google's position remains that no construction is necessary.
`Hammond has put in a construction to adopt the District Court's
`plain and ordinary meaning but then asks the Board to
`specifically exclude VoiceXML scripts as not being applications,
`and as we'll discuss there is no reason to exclude VoiceXML
`scripts.
`
`But if you turn to slide 27, no matter which way the Board
`comes out on the definition of “application” or the meaning of
`“application,” and this is also when the Board doesn't need to
`construe it, either way the claims are unpatentable. If a
`VoiceXML script can be an application, then Gilmore teaches it
`because it talks about VoiceXML scripts. If you exclude
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`VoiceXML scripts, you take the left branch on that diagram. The
`claims are still unpatentable because Gilmore discloses their
`voice gateway executing script-based voice applications and
`voice application programs. A broader meaning, and the petition
`doesn't just rely on VoiceXML scripts -- it talks about
`VoiceXML applications generally, but it also mentions at page
`13 the footnote, that you can have additional languages such as
`Salt, XML or Java, any language will do so it's not limited to
`VoiceXML.
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`If we turn to slide 28. This is the support for the fact that
`VoiceXML scripts should be included within the definition of
`application. We have an excerpt from the '816 patent on the
`right side at column 4, lines 44 to 56, which is the definition of
`applications. It's used in the '816 patent and it's a very broad
`definition. It says,
`"The term application refers to functionality that is capable
`of facilitating the ability to collect information from and/or
`present information to one or more clients or users of system
`10."
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`It's broad. It's functional. It's not limited to any particular
`type of code and if you go down it gives examples. It says that
`an application may comprise a series of queries requesting
`information and/or presenting information to a user. Any way
`you present that information can be an application. VoiceXML
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`IPR2020-00081
`Patent 10,270,816 B1
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`does that. The petition gives examples of prompt instructions
`which read text and convert them into speech or pulls a file from
`a URL and then plays the speech file to the user. That's
`presenting information to the user. It also receives information
`from -- it uses what's called a grammar construction and it uses
`that instruction to determine what the user said and then figure
`out a tailored response to the user. So VoiceXML scripts do
`that.
`
`But if we go further in that paragraph, the Hammond '816
`patent gives examples of the types of things that can be
`applications and the very first one mentioned is VoiceXML-
`based applications. That's what a VoiceXML script is. It's a
`VoiceXML-based application. It has functionality, prompt
`instructions and grammar instructions that facilitate sending
`information to and receiving information from the users of client
`18.
`
`If the Board has no other questions, those are the points I
`wanted to hit in my opening and I will reserve the rest of my
`time for rebuttal.
`JUDGE SAWERT: Any further questions colleagues?
`JUDGE HAGY: I don't right now.
`JUDGE SAWERT: Okay. Thank you. Mr. Rodkey, I have
`you down as about ten minutes left. Okay. Mr. Oldaker, good
`afternoon. How much time do you wish to reserve for
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`IPR2020-00081
`Patent 10,270,816 B1
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`surrebuttal?
`MR. OLDAKER: I'll reserve five minutes.
`JUDGE SAWERT: Okay. So you have 25 minutes and you
`can proceed when you're ready.
`MR. OLDAKER: Okay. Good afternoon. May it please
`the Board. After listening to Petitioner's arguments I'd like to
`remind the Board Petitioner has set forth eleven different
`grounds of obviousness in this IPR. Some of these grounds
`include two or three-reference combinations and some include
`four-reference combinations.
`Patent Owner's position is that all eleven of those grounds
`of alleged obviousness fail. They fail for several reasons. First,
`Petitioner failed to assess the scope and content of the prior art
`in line with Graham v. John Deere Co., and, you know, much of
`the commentary we just heard from Petitioner is essentially
`trying, in a sort of after the fact attempt, to try to make the
`selected cited references line up with what's in the Hammond
`disclosure and they just don't. So that's reason No. 1.
`In addition, Petitioner essentially utilized a broadest
`reasonable interpretation approach to reading HDI claims and
`that's why we are talking about a lot of these claim construction
`issues. It's that under a sort of broadest interpretation,
`reasonable or not, you know, the assertion is that the references
`here disclose the elements as claimed in the '816 patent and they
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`IPR2020-00081
`Patent 10,270,816 B1
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`just don't. In order to reach that there needs to be an
`unreasonable interpretation that's too broad.
`So to recap claim construction. As I sort of said, Patent
`Owner's position is that Petitioner is seeking unreasonably broad
`constructions for several terms that fail to take the context of the
`patent specification and the surrounding claim language into
`account. And each of these misgivings concerning Petitioner's
`meaning of the claim language, you know, these directly affect
`the application of those cited references to the claims.
`So for “application,” that was the one that -- that was the
`term that Petitioner just addressed and essentially what
`Petitioner is doing here is Petitioner is taking a portion of the
`Hammond specification, and this is on Petitioner's demonstrative
`slide 28. It shows column 4, lines 44 to 56 of the '816 patent
`and, you know, this was discussed in the context of what
`Petitioner believes “application” means, and so it seems that they
`are arguing that the application could simply be series of queries
`requesting information. That's an application in Petitioner's
`view. In Patent Owner's view that's incorrect, and this is
`essentially just Petitioner attempting to give an unduly broad
`definition to the term application. For instance, in this passage
`from column 4, lines 44 to 56 it says,
`"In one particular non-limiting example, application 28
`comprises a series of queries requesting information from and/or
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`IPR2020-00081
`Patent 10,270,816 B1
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`presenting information to a user of client 18."
`It does not say application is a series of queries or
`application is --
`JUDGE SAWERT: Can you tell me --
`MR. OLDAKER: Yes.
`JUDGE SAWERT: I'm sorry counsel to interrupt. Can you
`tell me again where you are? Slide 28?
`MR. OLDAKER: This is on -- sure, sure. This is on
`Petitioner's demonstratives slide 28 on the right hand side.
`JUDGE SAWERT: Can you read again?
`MR. OLDAKER: This is right after the highlighted
`portion. It says --
`JUDGE SAWERT: Okay. Thank you.
`MR. OLDAKER: Sorry, sure.
`"In one particular non-limiting example, application 28
`comprises a series of queries requesting information from and/or
`presenting information to a user of client 18."
`And so essentially what Petitioner is arguing is that an
`application is by itself a series of queries requesting information
`from or presenting information to a user of client. That's what
`an application is. And so, you know, in the patent world when
`you talk about “comprising” it generally means that the thing
`that you're defining or the thing that you're trying to describe --
`what the word comprising means -- that it includes, that it's not
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`IPR2020-00081
`Patent 10,270,816 B1
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`limited to. For example, I could say in a patent, I have a hammer
`that comprises a claw, okay? In that case I’m not saying that a
`hammer is a claw. In that case I'm saying that you have a
`hammer that may include a claw. It still has to be a hammer in
`order for it to be within the scope of that discussion that I'm
`having. So, you know, I think it's incorrect to look at this, as
`Petitioner has done, look at this portion of the specification and
`say oh, well because it gives examples of what an application
`may comprise -- meaning what an application could include --
`that doesn't mean that it's still not an -- that it doesn't still have
`to be an application.
`JUDGE HAGY: Okay. But counsel, what else -- I mean we
`have this phrase, I mean we have this passage from the '816
`patent that says that, I mean in your example of a patent claim
`where you have something that comprises X, is it not true that if
`somebody has X they're going to infringe on the patent because
`that's what it comprises? It could have 18 other things but it
`doesn't matter, as long as they have that. By the same token, if
`the prior art -- if the claim says “comprises X” and the prior art
`teaches X, then you have it. So I'm not really following that
`there are some additional aspects of an application. I mean, what
`are you saying that those have to be?
`MR. OLDAKER: Well, it's our position that application --
`even if you assume that Petitioner is right and if you look at the
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`IPR2020-00081
`Patent 10,270,816 B1
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`highlighted portion on the same slide, slide 28 of Petitioner's
`demonstratives, they highlight the portion the term application
`refers to functionality that's capable of facilitating the ability to
`collect information from and/or present information to one or
`more clients 18 or of digital system 10. So in that case, Patent
`Owner's position is, even if that's adopted as a construction, then
`a VoiceXML script, which is really what kind of what this fight
`is all about, a VoiceXML script doesn't really have functionality
`because a VoiceXML script is just letters. You need the sort of
`VoiceXML-based application to run that script in order for there
`to be functionality.
`JUDGE HAGY: But the script is telling --
`MR. OLDAKER: Does that help?
`JUDGE HAGY: -- it what to do; right? So the script is a
`series of steps or questions or information-gathering prompts;
`correct? How does that not fit within the scope of functionality?
`I mean at a literal level you're going to say the code is just
`letters, I mean the script is just letters. Well, so is source code.
`It's just letters or numbers. So, I mean we're talking about
`functionality. How is a script not providing functionality that
`facilitates the ability to collect information?
`MR. OLDAKER: Well, in Patent Owner's view it's simply
`not functionality without the thing providing the functionality.
`JUDGE HAGY: So is it your position that something has to
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`IPR2020-00081
`Patent 10,270,816 B1
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`be executable code to be an application?
`MR. OLDAKER: Well, an application could certainly
`include executable code. Yes?
`JUDGE HAGY: But what for you is the dividing line
`between merely a script and an actual application?
`MR. OLDAKER: Well, an application would be the
`component that allows -- it's difficult to say other than the
`component that truly provides the functionality, it's sort of the
`interface; right? You know, the concept of essentially, you
`know, something that goes into an application, such as a script or
`a word, that the application then operates upon or a variable of
`some sort is different than what an application is. So does that
`ans
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