Facebook, Inc. v. Phoenix Media/Communications Group, Inc. et al

Filing 106

DECLARATION re 105 Preliminary Claim Construction Briefs by Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Torres, Javier)

EXHIBIT C

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x
WIRELESS INK CORPORATION,
Plaintiff and
Counterclaim Defendant,
v.

11 Civ. 1751 (PKC)

FACEBOOK, INC.,
Markman Hearing
Defendant and
Counterclaim Plaintiff.
------------------------------x
New York, N.Y.
November 17, 2011
3:30 p.m.
Before:
HON. P. KEVIN CASTEL
District Judge
APPEARANCES
JEREMY S. PITCOCK
Attorney for Plaintiff and Counterclaim Defendant
COOLEY LLP
Attorneys for Defendant and Counterclaim Plaintiff
BY: HEIDI L. KEEFE
ELIZABETH L. STAMESHKIN

SOUTHERN DISTRICT REPORTERS, P.C.
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(Case called)
THE COURT: Good afternoon.
THE CLERK: Plaintiff ready?
MS. KEEFE: Absolutely. Your Honor, have happy news.
We sent your Honor via fax last night and then again this
morning a new, revised chart which eliminated three of the
terms, so your Honor doesn't have to construe those. They have
been moved from our contested definitions to our claim terms to
which the parties agree.
Within the last short amount Mr. Pitcock and we have
managed to also come to an agreement regarding the word
"implementing," which appears in both claim term number 9 in
the chart and claim term number 18. The parties would like to
propose for your Honor that we agree that "implementing" means
"putting into effect according to or by means of a definite
plan or procedure."
After that word is construed, we think that the rest
of the words will be dealt with with other constructions, so
your Honor doesn't need to deal with those terms either,
because we have come to an understanding among and between
ourselves as to what "implementing" means.
THE COURT: Do you agree with that, Mr. Pitcock?
MR. PITCOCK: Yes, your Honor, I believe that's
correct.
THE COURT: I am adopting that as the Court's
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construction.
MS. KEEFE: We appreciate that very much, your Honor.
Your Honor, I would like on the record to thank Mr.
Pitcock for engaging with us up to and including before court
started so we could try to reduce the terms for your Honor.
With the rest of the terms, I believe that any of them
rise and fall under different interpretations of what the, if
you will call it, gist of the invention of the '157 patent is.
One of the most fundamental disputes between the parties is
whether the patent is limited to machines or whether it is to
be read more broadly to include things that are not just
machines but could be something other than a machine.
When the '157 patent was being written up, was being
created, the problem at hand was basically that you want to be
able to make unique instances of things. People want things to
be user-configurable. They want a specialized car, not just a
regular car on the lot. They want their car to have automatic
transmission and leather seats as opposed to automatic
transmission and cloth seats. Or you would like a user manual
that has the paragraphs according to just the things that you
want to learn about, not all of the extraneous text, etc.
What happened with the invention in the patent was
that configuration and customization of items was really what
was at issue. The patent solves the problem of how difficult
and time-consuming it can be to customize items, to customize
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things like manuals or things like machines through computerimplemented techniques. We use the modern technology of a
computer to keep track of the different elements or options
that we might want to be able to configure something in its own
unique and special way. It simplifies that task.
The invention, though, has broad applicability, and
the specification is incredibly clear to point out that it is
not limited to machines. There are specific embodiments
described in the specification that describe configuring
machines; however, there are also embodiments in the
specification, one in particular which describes configuring a
user manual which could be either electronic or paper and
giving different paragraphs of a user manual, not a machine
itself.
We even have language from the specification that
specifically says, the inventor was clear, "It should be
understood that the present invention contemplates use with all
types of various items other than configuring machines and
creating manuals." Those are just two of the possibilities.
We go back to the claim itself, always one of our best
places to go. We look, for example, at claim 1. Claim 1 tells
us exactly why I'm fussing with all of this, is it a machine or
is it not a machine. Claim 1 calls out that we are going to
have a computer-implemented method like we talked about. The
invention is using a computer to solve this task of configuring
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or customizing, a computer-implemented method for configuring
an item. Not a machine, not a specific piece of hardware, but
just an item. A very broad term was specifically chosen.
Throughout the case we are going to be talking about
what is it that we are configuring, what is that item? Then,
depending on what type of an item you're configuring, almost
all of the rest of the terms will naturally fall into other
categories.
If you are configuring, for example, a car, the
options for your car may actually be physical components. I
may have a car with an automatic transmission which itself
would have the necessary machine pieces that allow the
transmission to automatically go to the right speed, with the
1, 2, 3, 4 drive, all of that kind of thing, depending on how
I'm driving. Versus, for example, if I were configuring a user
manual, the options would be the various paragraphs that we are
talking about.
In fact, your Honor, the specification specifically
called out -- Liz, can you show the specification -- that
specification that talks about the user manual. The
specification in column 5/lines 40 through 56 specifically
talks about the embodiment of this invention, the one
embodiment that is not limited to a machine.
It talks about using the present invention for other
concepts than configuring machines. In other words, please use
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my idea of configuring things, of picking options and having
options follow different characteristics and attributes, use
that for things other than configuring machines. The exact
language from column 5/lines 40 to 43: "Embodiments of the
present invention contemplate that the building block contents
could also be used for concepts other than for configuring
machines."
It goes on to say that one example is where the
building blocks are parts of text for an instruction manual.
It talks about how you may be at a car dealership and your
Honor decides which car you're going to purchase and which
options you like.
Then, for example, if I were the salesman, I would go
back into my office and I would say the judge has chosen a car
with options A, B, and C. I type into the computer, I need a
manual that makes sure to address those options, that makes
sure to include those paragraphs of text. The claim tells us
how all of that is going to be done.
For example, if we walk all the way through the claim,
the computer-implemented method for configuring a user manual
per the example in the specification wherein the user manual
comprises two or more optional components. In this case, for
example, the optional component described in this portion of
the specification is air conditioning. We read through a
specific example. If the buyer chooses a car with air
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conditioning, then the user of the present invention, in other
words the car salesman, could choose an air conditioning option
when setting up the manual.
So, we have to comprise two or more optional
components. The options are air conditioning and maybe air
conditioning with a thermostat. If we go down, in the rest of
this embodiment it talks about how the option can be the air
conditioning -- may I approach the screen, your Honor?
THE COURT: You may.
MS. KEEFE: The option chosen may be air conditioning.
But it goes on and says if the user, meaning the person who is
typing up the manual, further chooses that the air conditioning
unit contain a thermostat, he then chooses the thermostat
option.
When I first read this, I have to admit, your Honor, I
thought to myself, that's kind of crazy, don't all air
conditions have thermostats? I called my father, and he
reminded me that in fact that is not true, that you can have an
air conditioner without a thermostat. Some of the original air
conditioners just blew cold air. They didn't care what the
temperature was, they just continuously continued to blow the
cold air. And they had two positions, on and off. You were
either on or off. Those were your speeds. That's how that air
conditioner worked.
But in modern air conditioners, especially ones in
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cars that have, for example, an autosetting, you can pick if
you want your side of the car to be at 76 degrees. You need a
thermostat in order to do that so that you can tell
temperaturewise has your air conditioner reached the
appropriate level or not. But the ones with the thermostat
probably cost a little more. So you want to have the option of
having the lower-end conditioner with no thermostat versus the
air conditioner with thermostat, separate option. So the
option is for air conditioner or air conditioner with
thermostat in our claim.
The optional component would basically be the thing
that you need. In our manual the optional component is
actually the paragraph that describes the air conditioner. We
have to create a manual that goes only to our car with an air
conditioner, not the car with the air conditioner with the
thermostat, because we don't need all those additional
paragraphs about how to set it at 79 degrees and how to make
sure that the fan speed goes the right way. The optional
components are the paragraphs that relate to the option that is
we have chosen.
Now again we are configuring our manual wherein the
manual comprises two or more optional components. Our manual
now has just the paragraphs that we have actually wanted.
Then we go on in the rest of the claim to talk about
how we're going to do that. We have to create two or more
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options. The options were like we talked about. It is the one
with the thermostat or the one without the thermostat, wherein
those options correspond to two or more of the optional
components.
The one with the thermostat is just paragraph A, the
one without the thermostat is paragraph B. Or vice versa. I
think I said it backwards. The one without the thermostat is A
and the one with the thermostat is B. We then associate
attributes to each of those options. But we have to figure out
what an attribute is, because attributes relate to
characteristics of those components.
If we continue our hypothetical of building this
manual for the car, the characteristic of our paragraph that
describes just the air conditioner, the one without the
thermostat, is that it is found in the database that talks just
about the interior of the car.
All of this has been written before. All of these
paragraphs have been previously written. The characteristic of
the paragraph about the air conditioner is that it is in the
section of the big, long document that you are choosing
paragraphs from about the interior of the car. The
characteristic of the thermostat paragraph is that it is over
in the special section called extras. Now you know where they
kind of are.
According to the specification, the characteristic
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defines a feature, the features that are in the particular part
of this long grouping of words and paragraphs that we are
choosing from. The attribute is then actually exactly which
lines you're going to take. They are going to go page 2,
paragraphs 1 and 2 and maybe even 3. Whenever you pick the one
about just the air conditioner, attribute is page 2. Whenever
you pick the one about the thermostat, go find it at page
6/lines 5 through whatever.
According to the claim, after we do that, we now know
the characteristic tells us a feature of the paragraph we want,
where it is we're going to find it. The attribute is exactly
these lines, exactly these paragraphs. That makes sense
because we're going to use that to create this instance
creation file so that later on, when we want to build this
manual, we know exactly where to go and get the stuff.
The instance creation file contains that paragraph and
line number. You just put the data into that file: This
paragraph, this line. When we go to create the manual and we
push go, the software that is creating the manual knows to go
and grab just those paragraphs as opposed to some other
paragraphs.
The only other part that we have here, your Honor, is
the notion of a hierarchal option tree. Basically, that goes
to the notion that when I was choosing the car, when I was
building this manual, I had the option of an air conditioner or
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an air conditioner with a thermostat. Obviously, I can't have
an air conditioner with a thermostat if I don't also have an
air conditioner.
This is one of the ideas that in a hierarchal option
tree, to give meaning to the word "hierarchy," one has to sit
above the other. It is kind of a forced choice. There can
also be a deselection. You can think of any type of one option
sits above the other.
That's the background to the claim. I just wanted to
give that to your Honor to show how the specification fits
right within the claim.
You can also use the same exact type of example for a
machine. We could build the car itself. In building the car
itself, the item would be the car, the options would be air
conditioning or automatic air conditioning with a thermostat,
the optional component would be the machine parts that make up
the thermostat for one or the machine parts that make up just
the air conditioner with the vents and no thermostat for the
other.
The characteristics could be how many speeds they
have. The air conditioner without a thermostat only has two
speeds, on and off, whereas the air conditioner with the
thermostat potentially has a many as five: Off, low, medium,
high, or auto, meaning it goes to whatever temperature you set
it at. The attributes could be as simple as number of speeds.
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That information goes into the instance creation file.
When the manufacturer goes to build that car, they pull the
data out of the instance creation file, and they know only grab
the one with two speeds, don't grab the one with five speeds,
because we are building one that has just the air conditioner,
not the air conditioner with the thermostat, or vice versa.
If we go to the very first term that the parties are
having a dispute with, the first term is "configure an item."
The main dispute between the parties has to do with the fact
that defendants here, counterclaim defendants, Wireless Ink,
are saying that the item somehow should be limited to a device,
hardware or machine, must be a physical component. They go on
and on about the fact that our specification goes on at length
about configuring hard disk drives and configuring machines or
designs.
But, as I have pointed out to your Honor, the
specification is absolutely clear that it did not intend to
limit itself the machines. Instead, it used the term "item"
broadly because it considered itself to apply broadly, both to
machines and to things like user manuals, and even goes so far
under the example of creating the user manual to say not only
am I not limited to machines, I'm also not limited to user
manuals. I have broad applicability to configuring any item.
We know that this is also correct, your Honor, that no
definition of configuring an item can be limited to a machine,
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because we have other claims in the patent. If your Honor were
to turn, for example, to claim 6, claim 6 specifically calls
out configuring an item by picking machine components. So, the
inventor knew how to limit himself to machines or devices when
he chose to and in fact claim 6 is limited to a machine.
THE COURT: Let me hear from Mr. Pitcock.
MR. PITCOCK: Your Honor, I'll try to go through this
pretty quickly. First of all, most of what they are arguing
about is don't limit some term strictly to the embodiments. Of
course, as a general rule that's fine.
But patent claims are supposed to be definite. They
are supposed to point out and distinctly claim what it is that
you cover with the patent claim and what is not covered, so
that somebody like Wireless Ink can read the patent and figure
out is what I'm doing infringing, is what I'm doing not
infringing. You have to be able to tell the meaning of claim
terms with some particularity.
Under their construction, they essentially are saying
"item" means anything under the sun. You have no idea whether
an item is a chemistry molecule, you have no idea whether it is
limited to anything. They essentially are arguing that there
is no limitation, which is the entire point of the claim.
The example that they choose is particularly
misleading. I can use my slides or theirs. If you look at
their slide number 5, your Honor -- and they make a lot of this
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because creating a manual is the only thing other than choosing
software to go along with different components. I apologize,
your Honor. Do you mind if I approach?
THE COURT: You absolutely can.
MR. PITCOCK: They misleadingly try to say that the
item in this example is a manual. They base it on this sort of
very bad language which says the invention can be used in all
sorts of items other than creating a manual or configuring a
machine. But "creating" is a verb and "item" would be a noun.
It is very difficult to line that up.
In fact, what is really going on is right from the
beginning of this embodiment, as you can see on slide 5, it
says this invention, this general idea, could be used for
something other than configuring machines, it could be used for
something other than choosing the software that goes along with
the particular components that you choose for a machine. But
here the item is the car, the item isn't the manual.
THE COURT: Why do you say that?
MR. PITCOCK: Because the whole idea is you have an
item with optional components. The item is the car.
THE COURT: The manual has optional components as
well.
MR. PITCOCK: First of all, I'd say that the whole
thing is very difficult to try to wedge into a claim that
covers something that is expressly different than creating a
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manual. The beginning of this says, "Embodiments of the
present invention contemplate that the building block contents
of options could also be used for concepts other than for
configuring machines."
So, when you are looking at all the claims of the
patent which talk about -THE COURT: By the way, an automobile is a machine,
correct?
MR. PITCOCK: It is.
THE COURT: All right.
MR. PITCOCK: What I'm saying is she is trying to make
this correlation where the item is the manual. No, the item is
a car.
THE COURT: You said that twice now. I'm not getting
that from reading the language.
MR. PITCOCK: Here the optional accessories, which are
the optional components, the optional accessories are chosen by
the buyer.
THE COURT: There are indeed in the examples optional
accessories chosen by the buyer. There is no question about
that. I'm not yet convinced that those are the optional
components in claim 1. Remember, there are two sets of options
here. There are the physical, real-world, three-dimensional
air conditioner and the three-dimensional thermostat, and then
there is also the optional text corresponding to an air
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conditioner with a thermostat, an air conditioner without a
thermostat.
You could look at either as the optional component or
both as the optional component or perhaps only one of them as
the optional component. But I would not say, based on my
reading, that the optional component could not be the text
corresponding to the three-dimensional object, corresponding to
the accessory, so to speak.
MR. PITCOCK: OK. You have configuring an item, which
has to be something. Then, the item comprises two or more
optional components. I guess you're saying the optional
components here could be pieces of text, right?
THE COURT: That's what I'm positing. I'm not ruling,
I'm positing.
MR. PITCOCK: I understand. Then you create two or
more options, which are I guess data abstractions which
correspond to the text, right, or correspond to the -- see,
this where I'm having trouble.
THE COURT: The components may be, in essence, the
descriptor or the presence or absence of this item, not the
actual text that corresponds. The descriptor, there is the
real-world, three-dimensional thing, and then in the world of
the text there is the concept that this manual as well as this
car will have air conditioning and thermostat.
Then, under air conditioning with or without
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thermostat exists the actual text, and the optional component,
corresponds to what exists in the three-dimensional world.
Also, in the two-dimensional world there exists the components
as well. And under the component name is the text.
MR. PITCOCK: OK. Maybe I should start at the
beginning a little bit.
You're trying to figure out what the specification
conveys as the invention. The specification talks about in
order to allow the user to not only choose a particular
configuration for a desired machine but also to ensure that a
sound configuration is chosen.
The present invention contemplates that the structures
are implemented so that the appropriate properties are
conveniently associated with each other option, enabling the
appropriate software and appropriate attributes thereof for the
corresponding machine component to be implemented as a result
of choosing the option.
Again, there is a level of abstraction, but the patent
is describing the problem that is being solved and configuring
is specifically described as choosing the appropriate software
for an item, not creating a manual. So, it is in fact
contrasted with creating a manual.
THE COURT: Let me ask you, why wouldn't this claim
read on the development of some kind of instructional book or
history book and there are optional components? Maybe a
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component is the Civil War and another component is
Reconstruction, and one might want to cover the Civil War but
not Reconstruction or Reconstruction but not the Civil War.
There might even be a hierarchy under that. Maybe in certain
instances you really are not talking about the Battle of
Gettysburg unless you checked off Civil War. Why wouldn't this
read on that circumstance?
MR. PITCOCK: The reason why is I don't believe that's
what -- "configured" is a term that is used over and over again
in the patent specification to mean choosing software and not
choosing text. Generating a user manual is contrasted with
configuring a machine, it is not considered a subset of
configuring a machine.
THE COURT: Maybe you're speaking loosely here. I
would hardly categorize selecting text or selecting the
categories of text to be included as selecting software. The
term "software" wouldn't fit, wouldn't seem to fit, to me.
MR. PITCOCK: The patent nowhere says that configuring
is selecting text. All this is just a hypothetical trying to
read this embodiment which covers creating a manual onto this
claim which is expressing configuring an item.
THE COURT: Let's use your words, choosing appropriate
software.
MR. PITCOCK: OK.
THE COURT: I would hardly describe that as choosing
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appropriate software.
MR. PITCOCK: You would hardly describe? I'm sorry,
your Honor.
THE COURT: The circumstance you have described, I
would not call text ever software.
MR. PITCOCK: I agree, your Honor. That's why
creating a manual is not covered by these claims.
THE COURT: Where do you come off with software in
your proposed definition? I don't get that at all.
MR. PITCOCK: Because these claims are drawn to
configuring, which is repeatedly described as choosing the
software. The whole invention, what you are trying to solve -right here at the very beginning, "The problem solved by the
invention is software is increasingly found in various types of
electrical and electromechanical devices. For example, over
the past few years, devices, such as automobiles" -- so here is
your car where the device, the item -THE COURT: What slide number is this, sir?
MR. PITCOCK: Slide number 5 in my presentation, your
Honor.
THE COURT: Thank you.
MR. PITCOCK: -- "and toaster ovens are incorporated
with more and increasingly sophisticated software. There are
also many situations where a base model machine has numerous
optional components that can be chosen regarding a change in
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the software that is used to operate the machine."
The problem that is being solved, your Honor, is
you've got all of these -- I wouldn't say it's strictly limited
to a machine. That's not what I'm arguing. You can have, for
example, a network that has optional physical components, like
a number of different computers that could be involved. Or it
could be something that isn't computer-specific. It could be a
lighting system which has different physical components, and
you need software, depending on the components you choose, to
run that particular instance of the item.
So, looking at the patent and the teaching, if you
were going to try to read -- the whole purpose of this
invention is to allow a machine with a variety of different
potential components repeatedly described as different physical
components to be flexibly and efficiently configured. For
example, to have appropriate software attributes implemented to
operate the machine once.
THE COURT: Let me ask you, wouldn't that read one of
the embodiments out of the patent, the automobile manual?
MR. PITCOCK: I don't think it would, because these
claims, none of them are drafted to cover creating a manual.
They describe creating a manual as something that you could do
with the same basic concept, but none of the claims cover
creating a manual. They all cover different software
configurations. Attributes, every single term used here is
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talking about choosing software depending on the different
physical components of your item.
THE COURT: There is a preferred embodiment. I
certainly don't define a claim term by just looking at
embodiments in the specification, but one would suppose that
the inventor, in drafting the claim language, intended the
claim language to encompass the preferred embodiment.
I could posit a situation where the inventor failed in
that quest. That, I suppose, is possible. But a more natural
construction -- and you're welcome to tell me there is no such
rule of construction -- is that looking at the claim language,
which is the only thing I'm construing, it would be reasonable
to endeavor to construe it in a manner that covered the
inventor's preferred embodiments. Is that not a reasonable
principle of construction?
MR. PITCOCK: Actually, the rule, as I understand it,
your Honor, of claims construction is if you have a term that
is used in the patent, then the embodiments that are used with
relation to that, the embodiments in the patent, should be
presumed to be included within its scope. I would agree with
that.
But there is actually a lot of Federal Circuit case
law that says claims aren't presumed to cover every embodiment
in your patent. You can have all sorts of embodiments
disclosed that are not covered by the claims. So, it is not a
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rule that every embodiment in your patent -In fact, that is exactly what I think is going on
here, which is that 99 percent of this patent describes what
was considered to be the invention, which was generating the
software to configure a physical machine that has already been
constructed or that you are constructing as you choose
software.
THE COURT: Why isn't that just an embodiment, the
software, that's one of the ways?
MR. PITCOCK: Because what you are trying to figure
out is what does "configure" mean.
THE COURT: Right.
MR. PITCOCK: There is nothing in the patent that
indicates that "configure" means generating a manual. It's
just the opposite. The one example of creating a manual is
specifically contrasted with configuring. There is no reason
to presume that this embodiment is somehow covered under claims
that talk about configuring.
You're allowed to describe various options. In fact,
that is exactly what's going on here. You're allowed to
describe various options for what you think is within the scope
of your invention. Some of the claims will cover some of the
options, some of the claims may not. Here, for whatever
reason, the patentee did not choose to draft any claims that
cover generating manuals.
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THE COURT: Let me hear from Ms. Keefe.
MS. KEEFE: Your Honor, I think one of the biggest
problems we have been having is that Mr. Pitcock seems to think
that "configure" has to mean choose software. But if we look
back right away, for example, at column 4/lines 9 through 10,
the patentee tells us what he means by "configure." It doesn't
mean go choose software. It literally means prepare for use.
Configure: Make it look a different way, prepare it for use.
We have it here on the screen, your Honor. "Configure, e.g.,
prepare for use."
I'm not sure that I understand Mr. Pitcock's argument
that somehow the configuration of a machine is contrasted from
making a manual because of the word "configure." That's not it
at all. If your Honor looks at the paragraph we were talking
about, all that the inventor is saying in column 5/lines 40
through 60 is that one thing you can do is configure machines,
another thing you can do is configure a user manual, because
"configure" just means put into use. So, put it into the
appropriate use. You can either configure a machine or you can
configure a user manual.
When we go back to the claim itself and the claim
language, all we are doing is configuring an item. The
specification makes clear that the item could be anything.
It's not limited to a machine nor to a manual. In fact, it
could be even beyond that.
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THE COURT: Thank you, Ms. Keefe.
I am prepared to construe "configuring an item" to
mean "preparing an item for use such that it contains desired
optional components."
Next term, please.
MS. KEEFE: The next term, your Honor, is "optional
component." The key dispute here is again whether or not the
optional component has to be limited to an electrical or
mechanical part. That is truly the real difference between the
parties' construction.
Facebook is proposing that an optional component is
just like it sounds. It's a part or portion. "Component:
Part or portion of an item that may or may not be selected."
"May or may not be selected" is just our way of saying
optional, you can choose it. What is a component? It's a part
or portion.
If we go back to the user manual, the optional
components are the paragraphs of the item, the user manual.
THE COURT: Thank you, Ms. Keefe.
MS. KEEFE: Thank you.
THE COURT: Mr. Pitcock?
MR. PITCOCK: I'll just say -- well, it is what it is.
There is no example given in the patent where an optional
component isn't an electrical or electromechanical part that is
a physical component. There is nothing in the spec that
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indicates that. There is nothing in the spec that would let
one with skill in the art prepare anything under the sun for
use. The patent law does not allow claims to be construed this
abstractly. To just say it's a part of anything under the sun,
I don't believe it's supported by the specification.
THE COURT: You made the point in your briefing that
it may be that the construction renders the patent invalid. I
haven't a clue. You may lose the battle and win the war on
some of this. I have no idea. I'm not up to that point yet.
I do gather that I should be construing claim language
consistent with I guess a presumption of validity, I shouldn't
be construing it in a way to reach for an invalidity. What I
have been trying to do is construe the terms as a person of
ordinary skill in the art would understand them and how the
inventor intended them to be understood. That's what I'm
doing. It may be tomorrow's problem for what the consequences
of that are.
MR. PITCOCK: Fair enough. If you will look at slide
10, your Honor, in our presentation.
THE COURT: All right.
MR. PITCOCK: It's that all the components, and I'll
skip to line 12, all the components are always described as
physical. If you're talking about actually building the
machine, which is also contemplated by the patent, that also is
talking about physical components. It talks about physical
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1bhrwirh
assembly.
If you look at slide 13, when it's talking about the
option tree, it displays the corresponding physical components.
The options are a data abstraction that are supposed to match
actual physical components, such as air conditioning or a
thermostat or other physical parts of an item, if we are not
going to define it in particular. That is how it is used in
the patent repeatedly.
THE COURT: Thank you, Mr. Pitcock.
I'm construing the term "optional components" to mean
"a part or portion of an item that may or may not be selected."
I'll hear the next term.
MS. KEEFE: Your Honor, the next term is "options."
With respect to "options," we attempted to come as close to Mr.
Pitcock's language as possible to eliminate the disputes. What
remains is that we are proposing that options are data that
correspond to the optional components of an item. The only
dispute is whether the data must be user-manipulated, as Mr.
Pitcock suggests, and whether it's limited to physical
components.
Options, your Honor, are not user-manipulated. They
are user-selectable but not user-manipulated. User-manipulated
would mean that the option itself has to be somehow fussed
around with. The option is air conditioning or air
conditioning with a thermostat. That is nothing that the user
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is actually monkeying with. It's just something that the user
is choosing. In fact, "manipulated" doesn't appear anywhere in
the specification at all.
The last part about whether or not the component may
be physical is the exact thing that we have discussed
previously. We tried to come as close to Wireless Ink's
construction as possible: Data that corresponds to optional
components of an item. We just don't see any reason for
putting in "user-manipulated," because it is absolutely not
supported. If anything, it is user-selectable but not usermanipulated. And it is not limited to a physical component.
Thank you, your Honor.
THE COURT: Mr. Pitcock.
MR. PITCOCK: If you will turn to slide 15, your
Honor, "options," in quotes, is defined again and again in this
patent as representative of machine components, physical
components. They are supposed to be, she says, selectable.
That's what I meant by "manipulable." The options are
described in the various embodiments as being able to have
certain things that the user can also change about them
themselves.
If you look at slide 15, "Options: Representative
machine components. The necessary aspects: For example,
software for operating the desired machine to be implemented."
If you look at slide 16, "Options represented by data
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and computer" corresponds to optional components of the
machine. They are selected by the user according to the
optional components that the user desires to have as part of
the machine. Each option is envisioned to be created to
contain the necessary information to appropriately configure
the corresponding optional component of the machine.
Then look at 17 with reference to embodiments
envisioning configuring a machine, again selecting software
based on the different physical components. "The present
invention allows the user to choose from various 'options'
representative of machine components so that the necessary
aspects, for example, software for operating the desired
machine, can be implemented."
It's defined repeatedly in the specification as data
that corresponds to physical machine components, and that
definition in the specification given by the patentee ought to
control.
THE COURT: Ms. Keefe?
MS. KEEFE: Your Honor, that would leave out the
preferred embodiment of a user manual where there are not
physical components at all. The option is for a manual that
has text about air conditioning or a manual that has text about
air conditioning with a thermostat. That's where our
definition comes from. Unless your Honor has other questions.
THE COURT: Mr. Pitcock, any last word on that?
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MR. PITCOCK: The word "options" is not used at all
with respect to creating a manual. There is nothing that
indicates that the meaning particularly given by the patentee
for that term is somehow overruled by a discussion of
generating a manual which is specifically contrasted with
configuring a machine.
THE COURT: I'm construing the term "options" to mean
"data that corresponds to optional components of an item."
Next item, please.
MS. KEEFE: Your Honor, the next term that we have a
dispute regarding is "correspond." I think, your Honor, this
is a relatively simple dispute. We believe "correspond" can
have its ordinary meaning, but Mr. Pitcock is proposing that
"correspond" mean match.
The only problem I have with the world "match," the
problem I should say, not the only, is that "match" implies
identicality. In fact, throughout the patent "correspond" does
not mean match. Multiple characteristics, multiple attributes
can correspond to a same option. In other words, you have to
be able to have them relate to each other, be associated with
each other, but not match.
The problem I have here is that "match" implies
identicality. That's why we propose that "correspond" does not
mean match but instead, in the alternative, means that each
option has a counterpart optional component.
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THE COURT: Let me hear from Mr. Pitcock.
MR. PITCOCK: This is actually a term that we argued
about, if you will remember, in the first Wireless Ink patent
over and over again. The specification talks about how you're
supposed to be choosing things that match the options.
If you look at slide 28 -- I have these in a slightly
different order -- and if you look then at 29, the software
that you are putting in the instance creation file, which is
admittedly a computer file, is supposed to match. You don't
want to have to keep a complete copy of all the software that
may be necessary for the different components of your item.
THE COURT: Let me make sure I have where the term is
in the claim language. I know the word "corresponding" is in
claim 1. Help me out. Where is the word "correspond," or is
it simply the word "corresponding"?
MR. PITCOCK: It appears twice, your Honor. I'm
holding up their demonstrative.
THE COURT: I see. "Create two or more options
wherein said two or more options correspond to said two or more
optional components." I have it. Thank you.
MR. PITCOCK: There is another place, your Honor. The
attributes corresponding to the selected options.
THE COURT: Right. In both cases.
MR. PITCOCK: In both cases. Again, the whole point
is that you are trying to match what you put into the instance
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creation file, this computer file, which is software, you're
supposed to be matching it based on the particular options that
the user selects. So it is used in the specification
"correspond." Options, they correspond to the optional
components. Match, they have to match.
Then, on slide 31, each option is envisioned to
contain the necessary information to appropriately configure
the corresponding optional component of the machine. If they
don't match, then it's not going to work. Even under the broad
construction of "prepare for use," it doesn't make any sense.
Even in the manual example, if you somehow read it into these
claims, if you choose the air conditioning, you want the air
conditioning text. If you choose the thermostat, you want the
thermostat text. It has to match.
THE COURT: It appears to me that the word
"correspond" likely doesn't need any construction to a person
of ordinary skill in the art. It would be understood. I will
say and will construe it to mean the same as "correlate."
"Attribute."
MS. KEEFE: Thank you, your Honor. For "attribute" we
have boiled the dispute down very simply here to whether or not
the attribute must be software. The examples given of
attributes in the specification clearly indicate that the
attributes are not themselves software but instead are data.
For example, the example given regarding the hard disk
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controller that we have in figure 3 and the corresponding
text -THE COURT: Which slide is this now?
MS. KEEFE: This is in our slide number 18. The
attributes are not limited to software per se, but instead the
attributes are just data about the characteristics. The
specific example given would be read out by Mr. Pitcock's
construction.
The example given in Figure 3 is if you chose user
computer A, which had hard disk controller A, it would have X
tracks. In other words, it would have this many tracks within
the hard disk itself. As opposed to if you chose user computer
A with hard disk controller A and Y sectors per track.
Different attributes.
The specification describing the exact same figure
says, "Though 'attributes' include, e.g., X tracks, it should
be understood that embodiments of the present invention also
envision that X could be a specific number." So, in fact, the
attribute could be limited to a number.
This is why, your Honor, when we were going through
the example of how you're going to pick the text that you are
going to use, the attribute is essentially the number, the
data, that you are going to have in order to know which portion
of text to use versus which component to use.
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controlled air conditioner as the options, the attribute was
five speeds, so go pick the five-speeded one, number 5 is the
attribute, as opposed to attribute 2 for the nonthermostatcontrolled air conditioner, on-off. Here, X tracks versus Y
sectors per track. Therefore, an attribute has to be defined
to include options, not simply data.
THE COURT: Mr. Pitcock.
MR. PITCOCK: Again, this is her five-speed fan. That
is not in the patent. That's just a made-up example hypothetically applying this manual thing to these other claims.
What the patent actually talks about is the attributes.
If you look, your Honor, at slide 21, it talks about
configuring appropriate software attributes. This data
specifying in her example the number of sectors and track, yes,
it would include data like that. But attributes are software.
It would be software that would include that data. Again, if
you chose various disks, you also have to have that data
included if you're going to operate a machine with the
software. The attributes include that data, there is no doubt
about that, but the attributes are software.
If you look again at slide 21, it talks about software
attributes. All of these attributes are being saved in a file,
which there doesn't seem to be any dispute is a computer file.
THE COURT: This is what I don't quite get with both
of your proposed definitions. Yours is software which matches
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the characteristics of the particular optional components
chosen. The patentee's is data that represents a
characteristic or property of an optional component associated
with at least one option.
Why wouldn't I, to use yours, but I could do something
similar with theirs, start "attribute" with the characteristics
of the particular optional component chosen, or in the case of
the patentee's, an attribute is a characteristic or property of
an optional component associated with at least one option? Why
isn't that a better, more accurate definition of "attribute"
rather than resolving in this particular instance the data
versus software debate?
MR. PITCOCK: I think because "attribute" does have a
broad meaning to anyone reading a dictionary what will what you
are saying. I think that the patent claims use characteristics
and then they use attribute. The characteristics are the
features of the optional component, and the attribute is the
data or software that corresponds to those characteristics.
So, "attribute" in the patent is repeatedly used to describe
the data and not the characteristics of the thing that it
describes.
THE COURT: I see. Thank you.
I'm going to construe the term "attribute" as the data
that represents a character or property of an optional
component associated with at least one option."
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Next term.
MS. KEEFE: Your Honor, the next term is
"characteristics." I think here again we are down to a very,
very, very small dispute. Mr. Pitcock wants to add in the word
"distinguishing." That is simply not in the specification. It
reads in a limitation that doesn't exist.
The characteristic is a feature or property of the
optional component. It may be that it distinguishes it, it may
be that it does not. We simply propose a feature, property, or
quality of the optional component. That is supported because a
characteristic can in fact be shared by more than one optional
component.
THE COURT: Let me hear from Mr. Pitcock.
MR. PITCOCK: I would also like to say that we have
been talking about one of ordinary skill in the art. That's
the lens through which we are supposed to be doing these
things. I'm not sure who that person is if the art is
preparing anything under the sun on earth for use.
THE COURT: Who do you think the person of ordinary
skill in the art is?
MR. PITCOCK: Under your construction, if it's really
that broad, they would have to be a person with 3 to 7 years of
experience in putting together anything.
THE COURT: You flipped it and you said under my
construction.
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MR. PITCOCK: Yes.
THE COURT: Who do you think is the person of ordinary
skill in this art?
MR. PITCOCK: I think properly construed to the
invention, it would be a person who has 3 to 4 years of
experience in programming optional accessories that are
electrical or electromechanical.
THE COURT: Same question for Ms. Keefe.
MS. KEEFE: Your Honor, I think that the level of
ordinary skill is not that dissimilar to that which we are
using in the first portion of this case. I would probably go
along with the notion of someone with 3 to 4 years' programming
experience or other real-world experience, but it doesn't have
to be limited to physical or optical components.
THE COURT: All right.
MR. PITCOCK: We were talking about "characteristic."
I think "characteristic" is a word with an ordinary
connotation. I don't think it means anything different to
anyone of ordinary skill here than it would to anyone else. A
characteristic is normally a distinguishing feature, something
that characterizes something. It isn't just a feature, it's
something that distinguishes it from something else.
THE COURT: It would mean that if two optional
components shared the same call it feature or property, then
that feature or property would not be a characteristic,
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correct, under your definition?
MR. PITCOCK: It would have to distinguish it. This
patent is all about choosing different parts. There has to be
some option. There has to be something optional about it.
There has to be a difference between the two things being
chosen, which is the characteristic. If it were the exact same
thing, air conditioner versus air conditioner, there wouldn't
be any characteristic.
THE COURT: No, but one could posit that there could
be in the hierarchical tree other characteristics that could be
shared with both: I don't know, maybe an on-off switch, maybe
an analog on-off switch or a digital/analog on-off switch, and
that on-off switch could be common to several optional
components.
MR. PITCOCK: I agree. Again, for them to be
different optional components, there has to be some difference
between them. I just think that is the ordinary understanding
of the word.
THE COURT: I'm construing "characteristics" as
"features, properties, or qualities of the optional
components."
Next item.
MS. KEEFE: The next term, your Honor, is
"hierarchical option tree."
THE COURT: Good drawing. Thank you.
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MS. KEEFE: You have been using it, your Honor. I
think you have been using it quite well. We make sure to
define "hierarchy." The reason I believe Facebook's
construction actually works the best is that it takes into
account all the different things we need to take into account
to give definition to the words that are there. The words here
are "hierarchical option tree." It's "a collection of two or
more options arranged such that at least one option sits at a
higher level than the other."
Mr. Pitcock's definition ignores the notion of
hierarchy. It ignores the fact that we actually have to have
one seated at an option level that is higher than another. In
fact, he circularly defines "hierarchical option tree" with
items arranged in a hierarchical order.
The specification makes clear that hierarchical option
tree, for example, has things like parent options and child
options and that parent options are higher-level components to
the lower-level child options. Standard, normal hierarchical
tree. If you choose air conditioning, you may also choose,
below that, the thermostat option.
As odd as it is, I'm not sure you're going to be able
to see my pen drawing, but if we have the trunk of the tree
being, for example, the car, we have a branch here which is air
conditioning, in a hierarchical option tree we must have
another option that is subliminal to that which could be the
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thermostat. That's what our definition contemplates.
We think Mr. Pitcock's definition is a little
circular, a little confusing, and this is what the
specification talks about.
THE COURT: Let me throw this out. Maybe either or
both of you will disagree with it or agree with it. "An
organizational framework for two or more options wherein one
option sits at a higher level and branches into at least one
other option." Let me amend that further and say, "An
organizational framework for two or more related options where
one option sits at a higher level and branches into at least
one other option."
MS. KEEFE: I want to read what my associate took down
as notes. I'll stop talking before I read it.
Your Honor, we would be fine with that.
Mr. Pitcock, if you want to look at the notes, you're
welcome to. I think that works well.
MR. PITCOCK: I would only add, your Honor, that it is
critical that it's a visual structure where you can see both
options. If you look at my slide 37, the option tree hierarchy
is distinguished from other techniques for structuring and
implementing the option. One of the advantages to the option
tree is that you be able to see the hierarchy that you are
describing.
THE COURT: I'm going to adhere to the proposed
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construction that I read to the parties. Next term, please.
MS. KEEFE: Your Honor, that also covers "option tree
wherein two or more options are associated within a hierarchy"?
I believe your definition covers that as well, is that correct?
THE COURT: "Hierarchical option tree," is that what
you are asking me?
MS. KEEFE: There are two phrases, your Honor. One is
"hierarchical option tree." That definition works very well.
The second term, very related, same dispute, was just an
"option tree wherein said two or more options are associated
with a hierarchy." I think your definition fits there just as
easily.
THE COURT: I think it does also.
MS. KEEFE: Thank you, your Honor.
Now, we have eliminated on what used to be the chart
term 9 because your Honor agreed to our agreed construction of
the term "implementing." That means that I think what we have
next would be "instance creation file." I apologize. On the
chart I think I put "instance creation file" at number 11 and I
put "placing it into that" at number 10.
THE COURT: I have my own notes which I have had put
together for me by my clerks with my input, etc. I have it in
front of me.
MS. KEEFE: Thank you, your Honor. Our proposition is
simply that "an instance creation file is a stored collection
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of information representing the one or more selected options."
A file is a stored collection of information, so we have given
definition to what a file is. And the instance creation
represents one or more selected options that we have.
The key dispute here is whether or not the instance
creation file will have to contain software. Does it actually
have to have software within it? I would argue that of course
it does not, because the instance creation file sits almost as
a repository to which data, the attributes or characteristics,
can be placed into. So, the instance creation file is merely
the stored collection of information representing the one or
more selected options.
When the system goes to build the manual or build the
device, it looks to that file to figure out what's inside,
which data am I going to use. Then any software that it needs
to can act on that data. The file itself is not the software.
The file itself is the data. Just like on your Honor's
computer right now, a file could include your documents; it
doesn't include the word processing file that makes those
documents run. The file is the data itself.
THE COURT: Mr. Pitcock?
MR. PITCOCK: One of ordinary skill in the art would
see "file" as I think a computer file. There is nothing in the
specification which indicates otherwise. In her proposal for
one of ordinary skill in the art, she mentioned programming
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experience. They cite from the "file" definition of the
Microsoft Press Computer Dictionary, which seemingly would
indicate that "file" means what it means in computer parlance.
THE COURT: Which is?
MR. PITCOCK: Which is "a complete named collection of
information, such as a program, a set of data used by a
program, or a user-created document. A file is the basic unit
of storage that enables a computer to distinguish one set of
information from another."
The thing is that it's not just a collection of
information. It has to be a distinguishable set of
information.
THE COURT: Your definition doesn't even define
"file."
MR. PITCOCK: "File" was used in our two patents, and
no one seemed to have the need to construe it. "File" has a
meaning to one of ordinary skill in the art. I think everyone
knows what a computer file is. And I think most people realize
that a collection of information is just too broad, that you
can have databases, you can have a book, you can have whatever,
and it's not a computer file.
THE COURT: Let me see whether this is truly a matter
of dispute or not. What is your position, Ms. Keefe, on the
definition being "a computer-readable collection of stored
information representing the one or more selected options"?
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MS. KEEFE:

Could you repeat that one more time, your

Honor?
THE COURT: Yes. "A computer-readable collection of
stored information representing the one or more selected
options."
MS. KEEFE: Give me one second, your Honor.
THE COURT: Sure.
MS. KEEFE: That's fine, your Honor.
THE COURT: Mr. Pitcock?
MR. PITCOCK: A file is a single unit. That's the
only thing I think that is missing from your construction. And
it's what one of ordinary skill in the art would understand.
THE COURT: I think "collection" does it. I think the
word "collection" is a collection. It's not information
scattered across a universe that happens to be computerreadable. It's a collection. That's the concept captured
there.
MR. PITCOCK: Your Honor, I don't mean to be
argumentative.
THE COURT: You're not being argumentative. I'll let
you know if you are.
MR. PITCOCK: You may be right with that
understanding. I guess it's fine. It's just that a computer
file, when you say something is a file, it's not just a
collection. We're saying this collection of information is a
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unit. You're able to manipulate the unit. You can send the
file, you can save a file. It's a unit of information that can
be distinguished from another file. For example, when you work
on a word processor and you save your file, that's one
collection of information that's in one document. You have to
be able to distinguish it.
THE COURT: I take your point. I'm going to adhere to
my proposed construction. Thank you.
MS. KEEFE: Next, your Honor, we have "placing said at
least one attribute into an instance creation file." Our
proposal is simply that you are saving or storing the attribute
in an instance creation file. The real term that we are
looking at here is what does it mean to place the attribute
into the ICF. "Placing" here, according to the specification,
is saving or storing.
Wireless Ink's proposal adds too much information.
Instead of defining just the terms that are there, he wants to
reiterate the step that came before, the "in addition to
implementing the software," etc. If you were to read that
portion into this definition, you would actually be reading out
the remainder of the claim, you would be rendering that
language superfluous.
Here, your Honor, we ask you to construe the exact
words that are there. Placing at least one attribute into an
ICF is saving or storing the attribute in an ICF. We have
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already defined attribute and ICF, so there is no need to go
any further.
MR. PITCOCK: Your Honor, I say this only because I
think it will make it simpler. Because we have now agreed upon
the meaning of "implementing," which was a separate step from
placing -THE COURT: Yes.
MR. PITCOCK: -- I would agree that "placing" means
saving and storing. I don't believe the rest of this needs to
be construed, or it is covered by other constructions.
THE COURT: I tend to agree with you, and I think
their proposed definition acknowledges that. It's going to be
construed as "saving or storing the attribute in an instance
creation file."
MS. KEEFE: Your Honor, at this time I'm very, very
proud to turn over the discussion to Ms. Stameshkin.
THE COURT: Thank you.
MS. STAMESHKIN: Thank you, your Honor. The first
term I'll be dealing with is "option class." The parties I
believe were extremely close on this. In Wireless's response
to our opening claim construction, they stated that they would
propose essentially the same meaning that is being offered but
that ours did not take into account a critical element, which
is that options associated with the option class take on the
class properties.
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We have been discussing it. Our final compromise
proposal, which we believe takes it into account and comes from
the specification, is "a set of properties that can be
associated with specified options such that those options then
take on the properties of the option class either in whole or
in part."
THE COURT: Mr. Pitcock?
MS. STAMESHKIN: Do you want that again?
THE COURT: Not yet.
MR. PITCOCK: We have been discussing this, trying to
reach an agreement. It is very close. It is just that the
option class is technically a noun that contains the set of
properties. We have been unable to agree on what that noun is.
If your Honor thinks that "set" is sufficient, then that's
fine. It certainly encompasses the idea.
THE COURT: I think "set" does it. Let me hear it one
more time, please.
MS. STAMESHKIN: Sure. "A set of properties that can
be associated with specified options such that those options
then take on the properties of the option class either in whole
or in part." The "either in whole or in part" is in
parentheses, coming straight from the specification.
THE COURT: Anything further, Mr. Pitcock?
MR. PITCOCK: No, your Honor.
THE COURT: I'm going to adopt that.
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MS. STAMESHKIN: The next term we are also actually
quite close on. We propose a compromise again.
THE COURT: Which term is it?
MS. STAMESHKIN: The term is "option constraint." We
propose a compromise which is "a rule requiring that choice of
further options as limited by previous choices." All we did is
put the "a rule requiring" in front of plaintiff's proposed
construction.
MR. PITCOCK: That's fine, your Honor.
THE COURT: Read it one more time, please.
MS. STAMESHKIN: "A rule requiring that choice of
further options is limited by previous choices."
THE COURT: That's the construction adopted. Go
ahead.
MS. STAMESHKIN: The next two terms can be dealt with
together. They are inheritable attributes and inheritable
constraints. Basically, the specification explains that an
option class is associated with options and then options derive
attributes and constraints from the option class. Ours reflect
that.
I think a lot of the issues here related to the issues
we had with regard to "option constraint" and "attributes." I
think that ours use those terms within the definition, and
therefore we don't need to deal with anything beyond just
whether they are attributes that are derived from an associated
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option class or constraints that are derived from an associated
option class.
THE COURT: Mr. Pitcock?
MR. PITCOCK: I would say, your Honor, without
limiting all of my previous objections to other terms, that
these are fine.
THE COURT: All right. So, "inheritable attributes"
is defined as "attributes that are derived from an associated
option class" and "inheritable constraints" are "option
constraints that are derived from an associated option class."
MS. STAMESHKIN: I think we are down to the last few
terms, which also can be considered together, "configuration
selector" and "configuration generator." Again the parties are
very close.
Facebook's construction simply puts "software and/or
hardware that" in front of the same construction that plaintiff
is offering. These terms are nouns. The terms should be
construed as nouns. Within the specification, on column
11/lines 8 through 18, it explains that the components,
including the selector and the generator, can be implemented in
hardware, software, or a combination thereof, and it explains
some examples.
THE COURT: What slide that?
MS. STAMESHKIN: This is slide 37.
THE COURT: Let me hear from Mr. Pitcock. Your
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proposed definition does not have a noun that it starts with.
I think having a noun is needed.
MR. PITCOCK: I understand your point, and this is
sort of a patent point. This is a noun that is described
solely in terms of its function. "Configuration selector"
might as well say "means for selecting the configuration."
Same thing for "configuration generator," might as well read
means "for generating a configuration." It is written as a
noun, but it doesn't do anything but describe a function. It's
like saying I'm a tackler or I'm a judger instead of a judge.
If you look at the patent specification, "configuring"
is constantly described only in terms of software. But they
want to read in this very broad, hey, you can do anything in
hardware, software, or combination thereof even though there is
no description of how to do that in the patent. That is my
only point. It is just described as a function. There is no
particular structure in the patent that corresponds to this
thing.
MS. STAMESHKIN: The structure is right there:
Hardware, software, or a combination thereof. That is the
structure that can both be the components and thus practice the
patent claims.
THE COURT: Let me throw this out, Mr. Pitcock, and
see what you think. "Configuration selector: A structure that
allows selection of one or more options from the option tree."
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Is "structure" the right word?
MR. PITCOCK: I would agree with that, your Honor.
THE COURT: Let me hear from the defendants.
MS. STAMESHKIN: As long as the structure could
include hardware and/or software as per the specification.
THE COURT: I'm not deciding that. It seems to me
there is no reason why it couldn't be. It is my intention that
it include that. But I think that your definition was
limiting, and that is part of what my issue was.
MS. STAMESHKIN: We're fine with that.
THE COURT: "Configuration generator: A structure
that implements at least one attribute corresponding to
selected options and places attributes into an instance
creation file." Mr. Pitcock, is that acceptable?
MR. PITCOCK: Yes, your Honor.
THE COURT: Is that acceptable?
MS. STAMESHKIN: With the same caveats, yes.
THE COURT: What else?
MS. KEEFE: I know you're going to be stunned, your
Honor, but that's it.
THE COURT: Thank you. I could not have done this but
for the fine briefing and the very fine arguments presented. I
thank you for making this task easier for me.
We are adjourned.
(Adjourned)
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