mr before we get started mr nelson mr until mr access would like to talk permitted about timing it really doesn't make sense to have to thirty minutes separate that time period we were discussing it earlier we think what we would like to do is give you twenty minutes divide o concedes that the prior art reference adds force only invalidates the claims here if creation or a generation occurs only at the cellar interface or we get too deep can i ask you a bigger picture question which is you have another case and the before our court issue which raises the same claim construction issue that cases heard last july so one might imagine that  point before we would write an opinion that opinion would issue least for the really that's what would happen right but so if that opinion were to go against you one claim construction i'm going to ask you both person that when you were to go against you one claim construction what remains in this case where there still is broadest reasonable struction argument about whether the claims are valid or not and so if the claims are valid what can we do in another appeal for example to bring against another party so if for example in the litigation i don't follow you if the other court were to construe the claim to decisively say what it is what they are as a matter of law may go against you i don't understand how that would remain a claim construction issue for us yes your honor so in the in the litigation appeal four of the eight claims are valid they did not appeal that ok so those four claims remain in your so you're going to tell me what under section three seventeen that on the first two but on that claim construction point it is the exact same you're right the question here is whether the creation occurs and of course if you prevail on this other case then you prevail here right and i think they would disagree with that i that i think that or still renders anticipated your claims i think the answer would be that there is a broad as reasonable instruction here and i don't mean to speak for them a lesson but we would agree with you but i think in fairness to the other side they would say that there is a slightly different but the issue the fundamental issue is the same and it's whether the creation occurs at the seller interface or whether it occurs in whole or in part at the central controller and so that is the entire dispute and so that's undisputed the second point is google in the p t o acknowledge as they must that the presentation generation program is at the central controller so the question is whether processing the advertisement at the central control or through the presentation generation program generates or creates an advertisement and on this point this is actually at least according to the p t o a third undisputed point this is i'm looking at the five nine repeats the same thing in the two five brief at the top page thirty two p t o says to the extent generation or creation by the few g p is disclosed it must therefore be a limited technical step that takes place during the processing phase of the creates generates recreates that's exactly what we are saying so in all formulation all presentations have to go through the presentation generation program  is also in the litigation as well but the issue with add force is where does the creation of her and of the add force issue is in the litigation below but as i understand the litigation below the verdict with  model was unspecific as to what was being decided so it would seem to me that regardless of what happens for you in that case force issue is still here for us to resign correct your honor that is true so the first of it depends on the cla construction if the court at the other panel were to go against us and claim construction we believe that ad for us would still not render these patents are the and these claims invalid because under the claims whether it's at the cellar interface or at the central controller you still need to have some type of creation occurred and if you look at the record at a twenty one of two which is the ad force creation guide it states in bold google also called that the advertisement they have tried to construct an argument that the alt text to go along with the advertisement is somehow the advertising is creating a new advertisement but that makes absolutely no sense because more specifically describes over and over again both in the instruction manual and also in what's called the text op which is also in the record that the submitted advertisement must be entirely  describe an ad but it does not have to be there and the advertisements exists regardless the other thing that both the p t o and google have pointed to is the hyperlink that happens when you click on that but that's exactly what it sounds like it's what happens when you click on the ad it is not the advertisement itself ads force could not be clearer that at no point either at the seller entertains or at the central control or is an advertisement created fact that it's all that are highlighted the fact that my cursor goes over it it's just me over to another site well that's not what adverts describes number one but number two in that situation i don't think that is the advertisement the act that is underlying what happens when you click on the advertisement that's what happens when you hover over the advertisement that is not the advertising that's not the banner ad that exists so because of that it's there is no creation anywhere and since there is no creation anywhere  then we are left with the situation that regardless of how you interpret the claims ad for simply does not anticipate these claims in any way whatsoever and that is created by uploading content that is banner hypertext and then hope to know your honor the ad is in this is if you look again at a twenty one of the two it specifically states that the it's the submitted advertisement so the advertisement has been already been created before it goes into the system and then i'm sorry or whatever to advertising the contents been created no your hon r at age twenty one zero two and follow ads for services rich media guidelines or campaign delivery can be delayed it doesn't talk about advertising content it talks about the advertisements and that's exactly why we think that by the time it gets there on the that's also in the appendix lay down even more detail exactly how to create the advertisements now they will say that there is the ability if you go a couple more pages it does say that there is ability to add all text the  a description of the ad it doesn't even allow you to do it in all formulations whether and i frame or job or others there are some where you can even use all text if the defense if google and p t o were correct then in that situation there would be no advertisements that can't be correct the advertisement is here the advertisement has been submitted has been created already at this point so that is why we think that according to ad courses own disclosure it cannot be anything other than that the creation has occurred before it even gets to the seller interface and if that's true then add forces and anticipate regardless of anything else so i think the other major i want to spend more some more time on is the and i think more questions on the front because you think it's critical that regardless of whether the seller interface or not but i think the if not in a move to the other issue which i think it's specific to be the peels as opposed to the litigation appeal and that is the dependent claims and specifically the for dependent claims that the litigation that are the stop right in the parties they don't get to challenge it could be an ex parte challenge in these four claims but not an inch of our papers that right that's right that once you do an enterprise challenge with this absolutely is that once there is a final decision  of no invalidity which there is then the reexamination cannot be maintained and because we are here despite that fact we believe that at least with respect to those four claims that the resume anation have to go away we have asked for that relief at the patent and trademark office we asked it almost as soon as possible after google did not appeal the judgment of  eats it became they had up to october thirtieth of two thousand and eleven to appeal that we filed in early december our request with the p t o to terminate they essentially immediately denied it we asked for it to become final so that we could then appeal it they have that's that was in march of two thousand and twelve and they're sitting on it they acted with on the first petition within a month and a half and they're still sitting on the petition to terminate so that we can take that appeal but under three seventeen be the office of cannot maintain anything where there is a final judgment one other point on that which is that the issues specific to those four claims don't depend on the litigation appeal those that the separate claim construction issue that the district court held that they did not meet their burden to show on those issues that that they could actually maintain the to show that there is no in to our anticipation so that's why couple days after the final judgment of september thirtieth and so they had either the later of fourteen days after our notice or thirty days from the final judgment which is october thirtieth to do that they did not cross appeal so that at that point it became  o we do believe that under the claim construction that we have posited that it is at the central controller and that the claims of that claim one shows that the structure it's as prompted to input information to select an input information to create it's doesn't say prompted to create or prompted to select i understand that that is also tied up with the litigation appeal but we do think that looking at this as in any type of denote a claim construction review that it is important that cell or interface and we just totally disagree with that it has prompted to creep into input information to create and prompted input information to select not to create or select and in fact importantly i think and this does go to this appeal we took to meet their burden by the time i told you i give you the warning keep telling that using it thank you your honor and i'll make one quick point and then save the rest for a bottle with respect to add force they have stated that they add force meets the selection limitation even though the central controller is performing the task of selecting the language if you look at the language of claim one of the zero two five it is the exact same verbiage between prompted to input information to select and prompted to input information to create they cannot have it both ways they cannot say that on the one hand the controller selects for purposes of selection but that the seller selects or creates for purposes to create the average if our court should issue an opinion that is favorable in terms of you know basically follows the same construction that you all had suggested you were going to adopt what's left in this case do you agree with litigation so what's let's hear i do think that clay officially at least claim construction has to be reached as to b s claims although it's likely that whatever the court would do in the other cases the independent claims are the same it would want to do here is well so you're saying this is a technicality yes you're not saying that we would be free to reach a different claim construction than our colleagues if they issued an opinion first thing claim one the independent claim this limitation is x we're not free in the depend reasonable interpretation to adopt a broader and different construct well you're not and it's terms of the three seventeen issue of where the dish direct decision on the particular claims that would raise an interesting legal issue i don't know that we absolutely have to get to it here i mean if if as it happens the well we have to get to it if the federal circuit should rule against or in favor of mr nelson's client in the other case right then we'd be confronted with a situation where there's a federal circuit decision on clay and construction of the exact same term here you will have a different construction than what the federal circuit has said the construction would be so we would be directly confronted with this issue in this case whether or o under some serious broader reasonable construction could adopt a construction that differs from what the federal circuit has already said the construction should be i think would be presented with it directly  although it's not interact appeal here as she may yet has conceded in its most of its reply and it's blue brave that issue is before the p t o before the petitions office petitions out this didn't rule on that issue initially and there's a position for  saying is if if our other case decides claim construction in a way that favors mr nelson then in this case i'm reviewing a board decision on claim construction which is a different claim construction the what my court has already said i'm bound to follow so is there a series like broad it's reasonable construction that gives me the authority to say well the p t o is right in this case because they can apply a different theory of claim construction and what happened at the district court or enlighten balam by that other decision such that i have to just apply it here to your area is my understanding that under the broadest reasonable construction of the day that is a broader the specification support that kind of a construction and and there are a number of embodiments in the specification that what do we do with these four claims and why hasn't the p t o acted to remove them from the case was yes but the statute says thirty five u s c three seventeen says once there is a final judgment but you know i haven't read it is it must not there after be maintained final decision has not been entered into the party in this case and now it might be what and when when the federal circuit rules that the final decision you mean final once a final decision has been entered against a party in a civil it's not that there's a district court decision that's been entered it's on appeal to the federal circuits not final at this point it's bases in the case isn't final so there's no final decision yet in that action so if it is not yet it's sometimes a person that as an advertisement it's a bit loose language but the board down that that is simply one component of a complete advertisement but both the hypertext which is the link that when we click through one clicks on the ad and also the all text which is the text that appears when the mouse hovers over the ad are components of the completed advertisement as a board sound and at such an ad is created at the user interface with an ad force simply because there's no win it in the claims as to how many components are a minimum requirement of components that must be entered to create an ad for example in the claimed wisdom if there is merely a text add thirty characters on a card that is to be sold that's pretty much the component of that there is no minimum requirement of how many components must be required this is not an inherent the case there is no if the system does require that all three does requiring this permit an ad to be created from the edition of these various elements even if it somehow plains of texas not entered that would not change the anticipation analysis here listen to the oral argument from the litigation they are suggesting that there are some hidden meaning of creation in that case and that they're asking for a better construction of creation right so if that construction changes then the district court needs to look at the issue again but the construction the way it was we are fine with with the result but if the construction changes then it needs to go now separately from that close to their policy  make i want to talk a little bit about are suppose a concession i may have missed it but what i've heard is not the conception that i think we made when i heard was that we concede that we lose unless the creation happens only at the seller interface or at the appellate client side of the system that's not the concessions at most we would say that that we have a problem if creation occurs only on the server si and if you look at the blue brief as it came out the argument was the claims of the patent are limited to server side and we said no claims are open to any of their agnostic online service if you look at the grey brief starts to slide over now the point i think judge while if you were right on point talking about the all text and that's what we wanted to focus on anyway what i would direct you to in this is the zero five nine patent but it's in both the definition set and they define presentation any content not completed thing not some packaged up not a not whatever ship any content intended to inform or influence the viewers or readers and given media venue any content inform or influence all text does that when you have or over all text inform the view of the media that's and under substantial evidence standard review it definitely does that and that quote is out would you mind turning to twenty one to two of the ad for reference and responding to mr nelson's arguments about how it refers to advertisements it refers to what it's receiving as the advertisements tell me why we should say no the advertising is the thing with hypertext link and the alt ok to point the first time they've ever completed that sentence was today because  like i'm paraphrasing a bit but i think it's accurate right that's one important point because if you actually look at campaign deliberate can be the latest campaign to thank you for if you actually look at their patent they have the same thing when wait twenty four six and line sixty one point across twenty five it says and if you want the other pattern the zero to five it's eighty starting a column nineteen line sixty it says with the same rules and guidelines as those in the presentation rule database applied and force during data input at the cellar interface ok so they have rules too and they're forcing them at at the at the input database they sa all presentations created by this presentation and can see your program will result in a jump down because it's a long passage it says as the sellers enter information the presentation of configuration program forty seven fifteen using the information contained in the presentation rules database controls and monitors that entered information to conform to the controlling format and style for each targeted media venue for all the presentation that's exactly what absence is the fact a from another ng is the word advertisement if you look at the use in context what they're saying in the ad force reference is they're saying all of the fields the u r l the all text that the file has to be attached what they mean by the advertisement have to be corrected you've got to have the right to file a task you have to have the all text you don't have that optional but those things have to be filled out properly they're not saying that you have to have this package ready to ship to a web page that's what they mean when they say the advertisement is complete but importantly if you use the meaning of the word advertise or advertisement or presentation from the past all of those individual things are data that informs the viewer especially the audience and so what you have to do is use their definition of advertisement which is broad they chose it they have the power the pan they're going to pick something there or but instead they pick broadest definition you could have advertised any content that provides information as a viewer so what is submitted in ad force is the advertisement when it's packaged up you get the complete advertisement you look at their not complete until you have the text and the hypertext link because all of those things provide information to the right and that you package them you know what you ship out and all of that together so that you have that there are still processing going on on the server side with that force when they say the advertisement is complete i would call colloquial but it's not using the exact meaning of advertisement i mean you could say it's the same means that each of those pieces is an advertisement under the super broad meaning of the patent and that the package thing is also the advertisement or a advertisement and thus there is processing going on on the server side so you don't need to say that the meaning of advertising is different but you can get you there either way i just don't get confused by the the isn't one other thing with what headquarters actually says is the submitted advertisements plural so we have no idea what and we'll go with you on that one thank you read it in context there is no what if they're talking about any one that you upload and in fact the following pages if you for example turn to just the next few pages all around the ten pages either side it talks about uploading one particular advertisement not doing advertisements i don't think there's any meaningful difference between advertisements and advertisement there is a difference between advertisement and  presentation google came and said it was well advertised presentation means this so therefore advertisement means that it's but klein says advertisement it doesn't say presentation and the presentation just to step back a second about what these claims are all about it's about matching the formatting the color and the style of what the interment media venues are doing on the one hand and what the seller does all the seller has to do is enter information and so to say that the that can be a theory that there would be no advertisement if they didn't put in all text that cannot be correct because the advertisement is final when it is submitted through the ad for system they don't have to put in all text they do have to i do want to talk about the district court's construction the p t o says that that actually supports them it does not they gave an ambiguous construction on it which is our entire point of litigation appeal that the essential in the district court did a mixing and matching and said instead of having to create it's the customized advertisement and so it is not true that the district courts construction supports them it's if anything it's ambiguous and that's why there was a confusion we have a argument in a litigation appeal that's essentially the sum and substance of our litigation appeal i do want to hit briefly the point about excluding versus including the preferred embodiment under our position we think that is actually creation in our state in our patent but it is a mutually followed every single time i references to the fact that at the p g p at the central controller it is created it's on columns forty four line thirty six of the zero two five it says explicitly new presentations are created in their entirety and that is at the central server they have not addressed at all and if that's true and they are trying to exclude for embodiment here  one final point on the three seventeen issue is that regardless of what happens they cannot appear will are trying to relive again those issues on the dependent claims those involved different claim construction issues if this court to rules for us on the litigation on creation and processing they still would not be able to litigate those because those involved an appeal dependent limitations that do not depend at all upon the client construction issues and so because of that it does thank you for their argument the case the