[00:00:07] Speaker 02:
Our next case is number 23-2208, Fintive Inc.

[00:00:11] Speaker 02:
versus Apple Inc.

[00:00:17] Speaker 02:
Before counsel argued, there's a real problem here with the confidentiality markings, which seem to be inconsistent.

[00:00:26] Speaker 02:
And it could be very difficult for us to ask the questions that we'd like to ask at oral argument, unless there's some agreement that those confidentiality markings can be ignored by us.

[00:00:37] Speaker 02:
They seem not to be appropriate in the first place.

[00:00:49] Speaker 01:
Your Honor, Council for Apple and I had a brief email exchange where they confirmed that Apple does not want us to reveal the names of the code that we redacted in the brief, and so I have

[00:01:04] Speaker 01:
while difficult venture to construct my argument so that instead of naming the code, I refer to you.

[00:01:10] Speaker 02:
OK, but there are a lot of other confidentiality markings in there other than the names of the code.

[00:01:14] Speaker 02:
If we just treat all the other markings as removed and just keep the confidentiality of the code names, are we OK?

[00:01:25] Speaker 00:
Your Honor, anything else that's redacted in the briefing is fair game.

[00:01:28] Speaker 00:
All that's redacted from our brief are the source code file names, and that is what Apple wants to keep confidential.

[00:01:33] Speaker 02:
Okay, so if we keep the source code file names confidential, everything else is okay.

[00:01:38] Speaker 00:
I believe so, yes.

[00:01:39] Speaker 00:
Yes, your honor.

[00:01:40] Speaker 02:
Okay, thank you.

[00:01:41] Speaker 02:
Ms.

[00:01:41] Speaker 02:
Addy?

[00:01:51] Speaker 01:
Good morning, your honors.

[00:02:02] Speaker 01:
The district court erred in granting summary judgment in the face of Fintech's ample evidence of widget software, both direct and circumstantial.

[00:02:12] Speaker 01:
This case should be reversed.

[00:02:14] Speaker 01:
The district court construed the term widget to be its plain meaning of software that is either an application or works with

[00:02:24] Speaker 02:
application and which the software do you have to know what the software does just to say that your software doesn't help us very much well that's how the court construed widget our expert testified okay but in applying the construction of the facts of the case I think we have to understand what the source code does what the applet does what the app does otherwise it's hard to make much sense out of this

[00:02:52] Speaker 01:
So Your Honor, our expert testified that the widget is software that allows the user to interact with the card.

[00:03:02] Speaker 01:
And I can direct you to our blue brief.

[00:03:06] Speaker 02:
It's software that allows you to access the confidential information in the secured environment?

[00:03:14] Speaker 01:
Sometimes.

[00:03:16] Speaker 01:
It depends on what the widget is programmed to do.

[00:03:19] Speaker 01:
And the widget may be programmed to do different things.

[00:03:22] Speaker 01:
But it allows you to access information.

[00:03:26] Speaker 01:
It allows the user to access information relevant to the card.

[00:03:31] Speaker 02:
From the SE.

[00:03:34] Speaker 01:
Yes.

[00:03:35] Speaker 04:
Can you maybe walk us through an example, just so I can make sure I understand?

[00:03:42] Speaker 04:
There's something to do with interactivity at times.

[00:03:46] Speaker 04:
I think that's what Dr. Seamus or you are describing.

[00:03:52] Speaker 04:
But just some kind of concrete example, I think, would be helpful to paint a picture in my mind as to what is going on here that would be the types of functions that would meet the claim construction for widgets.

[00:04:09] Speaker 01:
OK, so there's a good example at pages 38 and 39 of our brief where our expert did demonstrations on the Apple iPhone and its wallet application.

[00:04:26] Speaker 01:
And first, he shows that you pull up the wallet application, and it has various cards that you have provisioned.

[00:04:33] Speaker 01:
And then he shows that you select one card, you tap on it,

[00:04:39] Speaker 01:
And you tap on that card, and then information shows up about that card.

[00:04:45] Speaker 01:
And different credit cards may provide you with different information about their cards, depending on the company.

[00:04:51] Speaker 01:
But the widget software is the software that is executed when the user touches the phone at the place where the card art is.

[00:05:02] Speaker 04:
OK, so the card art, in a way, acts as a user interface.

[00:05:09] Speaker 01:
Yes, it is.

[00:05:10] Speaker 04:
And then there's, in your view, software behind that display that is allowing the user to access information or perform actions.

[00:05:27] Speaker 01:
That's correct, Your Honor.

[00:05:29] Speaker 01:
That's correct.

[00:05:30] Speaker 01:
And our expert testified that

[00:05:37] Speaker 02:
My understanding of your argument is that you don't have to show the actual code that corresponds to the software.

[00:05:48] Speaker 02:
You can show what the device does and show that that functionality requires the particular software.

[00:05:58] Speaker 02:
And that is sufficient to show infringement.

[00:06:00] Speaker 02:
Basically, that's the argument, right?

[00:06:02] Speaker 01:
That is the argument, but there's a little more to it.

[00:06:05] Speaker 01:
So first, the claims require software for acting on a widget.

[00:06:10] Speaker 01:
And our expert was focused on that software.

[00:06:13] Speaker 01:
And through his over 300 paragraphs of expert report, he identifies the source code that specifically acts on the widget.

[00:06:22] Speaker 01:
But he also identified the widget itself.

[00:06:26] Speaker 01:
And he identified the widget itself, as you said, through

[00:06:31] Speaker 02:
Through functionality.

[00:06:32] Speaker 01:
Through functionality.

[00:06:33] Speaker 02:
He supplies various screenshots.

[00:06:35] Speaker 01:
Yes.

[00:06:35] Speaker 02:
And the question is whether those screenshots show the functionality that's covered by the claims, right?

[00:06:43] Speaker 02:
But he explains.

[00:06:44] Speaker 01:
Right?

[00:06:45] Speaker 01:
Yes, Your Honor.

[00:06:46] Speaker 02:
And he explains that functionality in his deposition.

[00:06:49] Speaker 02:
But the problem I'm having is I understand Apple's argument, looking particularly at page 15 of the red brief.

[00:06:55] Speaker 02:
What they're saying is that that's not, quote, sensitive information.

[00:07:01] Speaker 02:
that that may be information that's in the wallet, but it's not sensitive information, and that the functionality has to have the ability to disclose, to display sensitive information.

[00:07:14] Speaker 01:
Well, Your Honor, obviously we disagree with that, but that's a- I understand, but that's their argument.

[00:07:19] Speaker 01:
I understand.

[00:07:20] Speaker 01:
That is a factual dispute.

[00:07:23] Speaker 01:
Well, no, wait.

[00:07:23] Speaker 02:
But that's- I'm just trying to understand what the differences are between that is their argument.

[00:07:28] Speaker 01:
That is their argument.

[00:07:30] Speaker 01:
And I know you disagree with it.

[00:07:32] Speaker 01:
But that's the argument, right?

[00:07:33] Speaker 01:
I think that's one of their arguments.

[00:07:35] Speaker 01:
But I'll, yes.

[00:07:37] Speaker 04:
OK.

[00:07:37] Speaker 04:
That argument, it goes beyond what the claim construction is for which it is.

[00:07:41] Speaker 01:
Yes, it does.

[00:07:43] Speaker 01:
OK.

[00:07:43] Speaker 01:
Thank you.

[00:07:46] Speaker 01:
That is also a disputed issue of fact as well.

[00:07:49] Speaker 03:
And I think you've presented evidence from which a reasonable fact finder could find that confidential information is accessible.

[00:07:57] Speaker 01:
Absolutely, Your Honor, we have.

[00:07:59] Speaker 01:
One place to look for this is Apple provided a technical document.

[00:08:07] Speaker 01:
We have it at Bluebrief 38 to 39, which talks about provisioning what we would call as a widget.

[00:08:18] Speaker 01:
And if you look at that first bullet point in the technical document, the first bullet point says that it calls an API.

[00:08:29] Speaker 01:
And if you look at the claim construction of a widget, the widget works with an application.

[00:08:37] Speaker 01:
Later on in that bullet point, it says it retrieves server-defined UI for card information.

[00:08:43] Speaker 01:
And the widget definition says it may have a user interface.

[00:08:47] Speaker 01:
So that document in and of itself creates an issue of fact about the existence of widgets.

[00:08:55] Speaker 01:
But there's so much more evidence in addition

[00:08:59] Speaker 01:
Apple has a witness that describes the same underlying functionality.

[00:09:04] Speaker 01:
And that's at 19378 of the record, where he's talking about the UI and execution and the API.

[00:09:13] Speaker 04:
This is about passes?

[00:09:15] Speaker 01:
Yes, that's correct, Your Honor.

[00:09:16] Speaker 01:
And I think there's a factual dispute here about whether passes can contain widget code.

[00:09:23] Speaker 01:
And we say that they do.

[00:09:24] Speaker 01:
And our expert, Dr. Shamos, testified that they do.

[00:09:28] Speaker 04:
Let me try to put a final point on it.

[00:09:30] Speaker 04:
Is it your view that the passes that the Apple witness referred to is the widget?

[00:09:39] Speaker 01:
We can't say that it is the widget, but we can say that it is part of the widget.

[00:09:45] Speaker 01:
And I believe that our expert testified that these passes are

[00:09:53] Speaker 01:
code that is essential to getting the widget on the machine.

[00:09:56] Speaker 01:
It's involved in the creation of the widget, and it's involved in viewing the widget.

[00:10:03] Speaker 01:
In fact, some of this code has a very important name in it that you can see in our briefs that would also indicate the existence of a widget.

[00:10:13] Speaker 04:
Right, but Seamus didn't rely on that particular source code file as corresponding to the claimed widget, right?

[00:10:23] Speaker 01:
He discussed it in his expert deposition.

[00:10:26] Speaker 04:
I mean, it was a very quick, casual drive-by reference to that particular file.

[00:10:33] Speaker 01:
I think he found it later.

[00:10:35] Speaker 01:
But it's actually a part of a larger source code file that he was looking at.

[00:10:43] Speaker 01:
If this were before the district court, we would argue that it's not a new argument.

[00:10:46] Speaker 01:
This is something that was part of a larger file that he did discuss.

[00:10:50] Speaker 01:
In addition, Your Honor, that same file that we're referencing, that same file, Apple's expert, Dietrich, testified that it's used exclusively on iOS devices, notably the iPhone.

[00:11:05] Speaker 01:
And the district court disregarded that part of the testimony, relying on an earlier part of the testimony where he said it wasn't used on the Mac.

[00:11:17] Speaker 02:
Here it's inadequate because all it says is a widget is software.

[00:11:22] Speaker 02:
It's got to be software that does some specific thing, right?

[00:11:25] Speaker 01:
Well, it does say that it is software an application that works with an app software or that is an application that

[00:11:33] Speaker 01:
or that works with an application in which may have a user interface.

[00:11:36] Speaker 02:
OK, but it doesn't really go beyond saying it's a kind of software.

[00:11:38] Speaker 02:
It doesn't tell us what it does.

[00:11:40] Speaker 02:
I mean, if you were to prevail on appeal, and this goes before a jury, the jury would have to know what the software supposedly does, wouldn't it?

[00:11:51] Speaker 01:
The software does different things depending on which widget is being invoked.

[00:11:57] Speaker 01:
And there are different widgets on the Apple Wallet that are different cards that perform different functions.

[00:12:02] Speaker 02:
question but in order to the claim the claim is to a particular kind of software that does something that extracts confidential information from the wallet and allows the user to see it right yes and wait are you saying that widget is

[00:12:22] Speaker 04:
limited to the particular conception that Judge Dyck just expressed?

[00:12:27] Speaker 01:
No, no.

[00:12:27] Speaker 01:
I'm sorry, Your Honor.

[00:12:28] Speaker 01:
I'm not.

[00:12:29] Speaker 04:
OK.

[00:12:29] Speaker 04:
So you didn't mean to say yes when you said yes.

[00:12:31] Speaker 01:
I'm sorry.

[00:12:32] Speaker 01:
OK.

[00:12:32] Speaker 02:
Well, retract the yes and tell me what's the definition.

[00:12:36] Speaker 02:
What does the widget have to do to come within the claim?

[00:12:41] Speaker 01:
So to come within the claim, it has to satisfy the claim construction, which neither party has appealed.

[00:12:47] Speaker 02:
That's just software.

[00:12:49] Speaker 02:
Yes.

[00:12:50] Speaker 02:
That's not a not.

[00:12:51] Speaker 01:
It has to be software that does something.

[00:12:54] Speaker 01:
So Your Honor, I think it's important to look.

[00:12:57] Speaker 01:
The claims don't positively claim a widget.

[00:13:00] Speaker 01:
The claims are specific about what actions are performed on the widget.

[00:13:04] Speaker 02:
And specifically, the claims refer to the actions that are performed on the widget.

[00:13:10] Speaker 02:
Excuse me?

[00:13:10] Speaker 02:
What are the actions that are performed on the widget?

[00:13:13] Speaker 01:
Your Honor, the actions in claim 11 are retrieving the widget.

[00:13:20] Speaker 01:
And then provisioning the widget.

[00:13:21] Speaker 01:
Correct.

[00:13:23] Speaker 01:
Provisioning the widget.

[00:13:24] Speaker 04:
Whatever the widget may be.

[00:13:26] Speaker 01:
Software.

[00:13:26] Speaker 01:
That's right.

[00:13:26] Speaker 01:
The specific software for performing a specific task that is interactive with the user.

[00:13:32] Speaker 01:
What's the specific task?

[00:13:33] Speaker 01:
It can be different tasks, Your Honor, but sometimes it's providing information.

[00:13:37] Speaker 02:
What's the universe of tasks?

[00:13:39] Speaker 02:
I mean, you're fighting something, which seems to mean self-evidence.

[00:13:42] Speaker 02:
I'm sorry.

[00:13:44] Speaker 02:
present this and understand whether there's an infringement of the claim unless you know what the software does.

[00:13:50] Speaker 02:
Your whole theory is that by looking at the function, you can tell that the widget software is there.

[00:13:57] Speaker 02:
And I understand that it seems to be a legitimate theory of infringement.

[00:14:02] Speaker 02:
But you still have to know what it is that the actions are that are being performed by the widget.

[00:14:12] Speaker 03:
It seems to me that you were at a final free trial conference.

[00:14:15] Speaker 03:
The parties were ready for trial.

[00:14:18] Speaker 03:
And both sides seemed to have been content with the claim construction.

[00:14:21] Speaker 03:
And no one asked for any further construction.

[00:14:23] Speaker 01:
Is that where we are in this case?

[00:14:24] Speaker 01:
That's where we are.

[00:14:25] Speaker 01:
And I believe that there's a footnote in the red brief saying that there's no claim construction dispute.

[00:14:31] Speaker 01:
And I think that's because widgets can be different things.

[00:14:35] Speaker 01:
But in this case, Your Honor, the widget

[00:14:39] Speaker 01:
provides interoperability between the user and the card holder regarding information and action for his cards.

[00:14:47] Speaker 03:
Just one small point.

[00:14:49] Speaker 03:
As I understand it, there were other grounds for summary judgment that Apple has asserted in its motion.

[00:14:54] Speaker 03:
And the district court did not reach because they want to miss one.

[00:14:57] Speaker 03:
That's correct.

[00:14:57] Speaker 03:
So if we were to remand, you would still have to confront those other grounds for summary judgment, correct?

[00:15:03] Speaker 01:
I believe they denied them, but if there are grounds that weren't reached, the parties would have to deal with that.

[00:15:08] Speaker 03:
If the district court says the court need not address the other three grounds?

[00:15:12] Speaker 01:
I know that there was an oral proceeding as well.

[00:15:15] Speaker 01:
So yes, Your Honor, you're correct.

[00:15:17] Speaker 01:
If there are unaddressed grounds, we would have to deal with those.

[00:15:22] Speaker 02:
Thank you.

[00:15:22] Speaker 02:
OK.

[00:15:23] Speaker 02:
You want to save?

[00:15:25] Speaker 01:
Yes.

[00:15:25] Speaker 01:
I will save the remainder of my time.

[00:15:27] Speaker 02:
You have two minutes.

[00:15:28] Speaker 01:
Thank you.

[00:15:29] Speaker 01:
Two minutes.

[00:15:30] Speaker 02:
Ms.

[00:15:30] Speaker 02:
Bostwick.

[00:15:41] Speaker 00:
May it please the court.

[00:15:42] Speaker 00:
There are a number of misstatements the Council for Fintive made that I would like an opportunity to clear up.

[00:15:46] Speaker 00:
But to start, I want to sort of reset the basic discussion.

[00:15:51] Speaker 00:
This case is not actually about what the widget does, but what it is.

[00:15:56] Speaker 00:
If we look at the claim language, as Your Honors were doing a minute ago, the claims don't talk about widget software for interacting with a card.

[00:16:03] Speaker 00:
The claims do not.

[00:16:04] Speaker 00:
Our position is not that there's some issue about whether they retrieve confidential data.

[00:16:08] Speaker 00:
That was part of a discussion in the background of our brief explaining the many ways in which Apple's accused system is different from what the patent contemplates.

[00:16:16] Speaker 00:
But the issue is not that the widget doesn't do the thing it's required to do.

[00:16:21] Speaker 00:
It's that it doesn't exist in the first place.

[00:16:23] Speaker 00:
There is no piece of software in Apple's accused devices that meets the requirements of the widget.

[00:16:28] Speaker 02:
You have to agree that you can prove the existence of software by proving that the functionality

[00:16:35] Speaker 02:
that the software performs is present in the device, right?

[00:16:41] Speaker 00:
If the claims in this case were about software to perform a particular functionality, then perhaps you could show it by showing that the functionality is in the device.

[00:16:49] Speaker 00:
That's not what these claims have.

[00:16:51] Speaker 00:
What these claims refer to is a particular structural arrangement of multiple different pieces of software.

[00:16:57] Speaker 00:
The widget is one of them.

[00:16:59] Speaker 00:
and the claims talk about the actions performed on those different pieces of software and the interrelations between them and that's really important because it's part of why the actions performed on the software.

[00:17:11] Speaker 00:
The actions performed on the widget in claim 11 are retrieving the widget and then provisioning the widget and then in claim 18 this is about the server side of the system and has a widget management component to store and manage widgets and then claim 23

[00:17:26] Speaker 00:
uh... is the the device claim that refers to a mobile wallet application configured to store a widget in each of the claims also the widget must correspond to a contactless card applet which is a separate piece of software which is is part of an additional part of the problem with the functionality argument that they're presenting they're saying and their expert was saying but i can pick up my iphone i can touch a card on the screen

[00:17:52] Speaker 00:
The claims have nothing to do with that.

[00:17:54] Speaker 00:
The claims don't say that a widget can do that.

[00:17:55] Speaker 00:
In fact, as our expert pointed out, this is at A14062.

[00:18:01] Speaker 00:
Claim 11 talks about displaying a contactless card applet for the user before the widget is even retrieved.

[00:18:10] Speaker 00:
So before the widget even gets onto the device, you can display that card and make a selection.

[00:18:14] Speaker 04:
I'm getting lost.

[00:18:15] Speaker 04:
And as to what is the actual true focus of this appeal and the grounds for granting summary judgment, you're making a broader non-infringement argument right now, it sounds like.

[00:18:28] Speaker 04:
And what I just want to try to understand here is,

[00:18:35] Speaker 04:
For our purposes, this Court's purposes, do we just have to answer the question whether or not there was a genuine dispute about whether the functionality that the plaintiff was pointing to in Apple's accused product is functionality performed by software or not software?

[00:18:57] Speaker 04:
Is that the only question we have in front of us?

[00:18:59] Speaker 00:
I would phrase it a little differently.

[00:19:01] Speaker 00:
It is a narrow question.

[00:19:02] Speaker 00:
The claims all require a widget, actions performed on a widget, or things configured to do something to a widget.

[00:19:08] Speaker 00:
Under the undisputed construction that the district court gave, which Fintive fought at the district court and has not challenged on appeal, the thing that is acted upon must be software.

[00:19:17] Speaker 00:
And so the question is, has Fintive actually identified, presented a genuine issue of fact that there is software in Apple's accused devices,

[00:19:26] Speaker 00:
that could be the widget.

[00:19:28] Speaker 02:
And as the district court found... Well, there is software in the devices, right?

[00:19:31] Speaker 00:
There's plenty of software.

[00:19:32] Speaker 02:
That doesn't answer whether... We have to know what the software does.

[00:19:36] Speaker 00:
No, Your Honor.

[00:19:36] Speaker 00:
You have to know what the software is.

[00:19:38] Speaker 00:
Let me give you an example.

[00:19:39] Speaker 00:
I think it's helpful to contrast their argument on the widget and their allegations on the widget with their allegations on a separate piece of software that is the wallet management application.

[00:19:48] Speaker 00:
If we look at Dr. Chalmers' report,

[00:19:51] Speaker 00:
This is an appendix one eight seven six eight this is right after he has these paragraphs on the on the widget right and he says yes there's there's a widget he cites a whole bunch of source code files for the widget at his deposition he said that each of them was not the widget.

[00:20:07] Speaker 00:
He cites some non-source code files.

[00:20:08] Speaker 00:
He set it as deposition.

[00:20:10] Speaker 04:
Those are not the widget.

[00:20:12] Speaker 04:
He didn't have to cite.

[00:20:14] Speaker 00:
Absolutely not, Aaron.

[00:20:15] Speaker 00:
And I'm about to show you how.

[00:20:16] Speaker 00:
So the wallet management applet is the next limitation.

[00:20:20] Speaker 00:
It also has to be software.

[00:20:22] Speaker 00:
Starting at appendix 18768 and going on to 18771, he identifies three specific things that he thinks might be the wallet management applet.

[00:20:32] Speaker 00:
He talks about an applet by name in paragraph 312 that the court can see.

[00:20:37] Speaker 00:
He talks about in paragraph 313, he talks about a domain that the court can see.

[00:20:41] Speaker 00:
And in paragraph 314, he talks about another named applet.

[00:20:45] Speaker 00:
The first two of those, he doesn't cite source code files.

[00:20:47] Speaker 00:
He cites non-source code files.

[00:20:49] Speaker 00:
For the third, he cites a mix of source code and non-source code.

[00:20:52] Speaker 00:
We may have plenty of problems.

[00:20:54] Speaker 00:
We're going to dispute that this is infringement of the Wallet Management Applet limitation.

[00:20:58] Speaker 00:
But what we didn't do is move for summary judgment for lack of evidence.

[00:21:01] Speaker 00:
Because what we can see in these paragraphs

[00:21:04] Speaker 00:
is what fintech is accusing in the first place of being the wallet management applet.

[00:21:09] Speaker 00:
There is no comparable showing for the widget.

[00:21:11] Speaker 00:
Everything that Dr. Chalmers pointed to in his report, he then said in his deposition, everything concrete that he pointed to, he said in his deposition, that's not the widget.

[00:21:20] Speaker 00:
All that he is left with is a screenshot and he's saying, well, I can interact with it and so there's some software behind it.

[00:21:27] Speaker 00:
Okay, but how do we know that the software that's sitting behind it is retrieved, provisioned, stored by the widget management component on the server?

[00:21:34] Speaker 00:
They haven't identified the software and there's a reason why they aren't telling you what specific software is causing that interaction.

[00:21:43] Speaker 00:
because if they pointed to it, they would not be able to meet the claim language.

[00:21:47] Speaker 00:
You can see there's a brief reference to this in Dr. Chalmers' deposition to part of Apple's operating system code, part of the code that is pre-existing on the device that is what allows that interaction.

[00:21:58] Speaker 00:
Now, they never argued to the district court that that part of the operating system code is the widget.

[00:22:03] Speaker 00:
They bring it up to this court, and it's in his deposition.

[00:22:05] Speaker 00:
It is not in the summary judgment record, because if they had argued that, we would have had a very different non-infringement argument.

[00:22:11] Speaker 00:
That code is not retrieved, is not provisioned, is not stored on the server side.

[00:22:15] Speaker 00:
It doesn't have the... It doesn't meet all of the claim requirements of widgets.

[00:22:19] Speaker 04:
So the issue here... That sounds like a different question though.

[00:22:23] Speaker 00:
It would be.

[00:22:23] Speaker 04:
Right now, the only question is whatever they're saying is a widget.

[00:22:33] Speaker 04:
And it sounds like you would basically agree that inside of Apple's iPhones, whatever the clicking and interacting with the display, that is in fact being performed by software.

[00:22:48] Speaker 04:
Now, it might not be provisioned in the way it's claimed or retrieved or whatever.

[00:22:53] Speaker 04:
The words of the claim are saying, but I don't think you're questioning the fact that underlying it all is, in fact, software that permits this kind of user interaction.

[00:23:04] Speaker 04:
Am I right?

[00:23:05] Speaker 00:
There's all kinds of software in Apple's devices.

[00:23:07] Speaker 00:
Some of it permits user interaction that has nothing to do with the claim language, which does not.

[00:23:12] Speaker 04:
OK, but it has everything to do with the grant of summary judgment.

[00:23:14] Speaker 00:
It absolutely does not, Your Honor.

[00:23:16] Speaker 00:
The grant of summary judgment was that Fintive couldn't say what the widget was.

[00:23:20] Speaker 00:
If you look at Appendix 10, this is what the district court was struggling with.

[00:23:23] Speaker 00:
And he says, nowhere does Fintive's opposition state that the widget in the accused product is X, where X is an identifiable piece of software as required by the court's construction.

[00:23:34] Speaker 00:
They haven't given you an identifiable.

[00:23:36] Speaker 02:
We've taken these screenshots.

[00:23:40] Speaker 02:
We think that that shows that the widget performs a particular function that's covered by the claims.

[00:23:48] Speaker 02:
Therefore, there must be a widget in there.

[00:23:51] Speaker 02:
And you agree they don't have to show the source code, right?

[00:23:55] Speaker 00:
I really don't just show the source code.

[00:23:57] Speaker 00:
I don't agree with the exact characterization of what they said, but regardless saying it performs a function again.

[00:24:01] Speaker 00:
That's not what these claims are about.

[00:24:03] Speaker 00:
These claims are about an arrangement of multiple pieces of software.

[00:24:07] Speaker 00:
How is that differentiating it from what they've pointed to?

[00:24:11] Speaker 00:
as the contactless card applet, which is a separate claim limitation.

[00:24:14] Speaker 00:
So for the contactless card applet, this is appendix 18748.

[00:24:21] Speaker 00:
And what Dr. Chalmers points to you for that is the graphical representation of a payment applet for a particular card.

[00:24:27] Speaker 00:
If all I'm saying is I can look at my phone and see a picture of a card, how is that different?

[00:24:34] Speaker 03:
The picture of the card and the way a user interacts with us tells us, tells me, Dr. Seamus, that there is software underlying that, and that's the widget.

[00:24:44] Speaker 03:
What precludes a jury from having to assess that kind of evidentiary presentation?

[00:24:50] Speaker 00:
So first of all, Your Honor, he doesn't actually say that.

[00:24:52] Speaker 03:
Fintov's attorneys are saying that they haven't shown where Dr. Chalmers said that, and they particularly haven't... Well, he clearly says there's a widget there, right?

[00:25:02] Speaker 03:
That is his opinion.

[00:25:02] Speaker 03:
You might say it's conclusory.

[00:25:04] Speaker 00:
Yes, Your Honor.

[00:25:05] Speaker 03:
But he says there's a widget there.

[00:25:06] Speaker 03:
Yes, Your Honor.

[00:25:07] Speaker 03:
And then he starts to point to all sorts of functionality.

[00:25:12] Speaker 03:
I mean he does throughout his report, it's a long report.

[00:25:14] Speaker 00:
He points to source code, right?

[00:25:15] Speaker 00:
He points to source code.

[00:25:16] Speaker 00:
And then at his deposition we ask him, okay, is that the widget?

[00:25:19] Speaker 00:
Is that the widget?

[00:25:20] Speaker 00:
And he said no, no, no.

[00:25:23] Speaker 03:
The only functionality... What requires him, what case would require that he specifically identify the piece of software that is the widget?

[00:25:33] Speaker 03:
What prevents them from making a broader circumstantial case to a jury

[00:25:38] Speaker 03:
That includes the expert saying only what he said in the report and includes, you know, evidence that came out of the mouths of Apple witnesses plus Apple doctors.

[00:25:49] Speaker 03:
I'm not sure.

[00:25:55] Speaker 00:
I'm not sure.

[00:25:56] Speaker 00:
I'm not sure.

[00:25:59] Speaker 00:
I'm not sure.

[00:26:00] Speaker 00:
I'm not sure.

[00:26:02] Speaker 00:
I'm not sure.

[00:26:03] Speaker 00:
I'm not sure.

[00:26:05] Speaker 00:
I'm not sure.

[00:26:07] Speaker 00:
I'm not sure.

[00:26:11] Speaker 00:
I'm not sure.

[00:26:13] Speaker 00:
I'm not sure.

[00:26:15] Speaker 00:
I'm not sure.

[00:26:17] Speaker 04:
But let's assume during the hearing below and in the briefing to us, they are trying to make a connection between so-called passes that the Apple witness discussed and the widget.

[00:26:29] Speaker 04:
Not that the widget is only the passes, but the passes represent the kind of software that make up the broader widget limitation.

[00:26:41] Speaker 00:
So a couple answers, Your Honor.

[00:26:42] Speaker 00:
They haven't said that.

[00:26:43] Speaker 00:
They also direct the court to Appendix 26298, the Suspended's Council at the summary judgment hearing to the district court, quote, we're totally fine with relying on Dr. Chalmers' report as to what he says is the widget.

[00:26:56] Speaker 00:
That is what he will present at trial.

[00:26:58] Speaker 00:
I think that combined with the district court's earlier ruling that they would be limited to their report means they're limited to their report.

[00:27:04] Speaker 00:
Beyond that, if they want to say that passes are the widget, again, they have to point to software.

[00:27:10] Speaker 00:
And all they've pointed to in connection with the passes are data, not software.

[00:27:14] Speaker 00:
They've pointed to the card image code.

[00:27:16] Speaker 00:
Excuse me, yeah, they call it card image code.

[00:27:18] Speaker 02:
I would call it a card image file, regardless of the... The other interesting thing is you can't get that screenshot without the widget software.

[00:27:28] Speaker 02:
And the widget software

[00:27:30] Speaker 02:
in claim 11 is defined as corresponding to the contactless card applet, right?

[00:27:36] Speaker 02:
Yes, Your Honor.

[00:27:37] Speaker 02:
Which means that it's providing the same information that the contactless card applet has in the SE.

[00:27:46] Speaker 00:
I'm not sure that's exactly what we would say corresponding is, but I don't think it's a relevant distinction.

[00:27:51] Speaker 00:
The point is, it's not just that it has to correspond to the contactless card applet.

[00:27:55] Speaker 00:
It has to have been retrieved.

[00:27:57] Speaker 00:
Okay, what software is retrieved that is then the widget that gets to be provisioned?

[00:28:02] Speaker 02:
Because it's retrieved, because I took this picture of it.

[00:28:05] Speaker 00:
No, retrieval refers to retrieval from the servers.

[00:28:08] Speaker 00:
That's common ground between both parties.

[00:28:10] Speaker 04:
Well, okay, but I'm getting a little lost here in terms of what is actually the nature of the appeal.

[00:28:15] Speaker 04:
I didn't recall this appeal getting into whatever the widget is has a case been made that it is being retrieved by Apple's products or that it's being provisioned by Apple's products.

[00:28:27] Speaker 04:
The only thing we need to worry about is whether there's a question, a plausible question, a reasonable question, that whatever the widget is, the functionality identified by the plaintiffs, that it is being done by software.

[00:28:43] Speaker 04:
Maybe they don't have direct proof of that.

[00:28:45] Speaker 04:
Maybe it's just circumstantial.

[00:28:47] Speaker 04:
Maybe it's just an expert just talking about how there's user interaction steps and therefore those steps necessarily are being done by software.

[00:28:59] Speaker 04:
And maybe that's rather meager and light evidence.

[00:29:03] Speaker 04:
But nevertheless, I think that's the only question we have to ask, right?

[00:29:08] Speaker 00:
I think it's even more basic than that.

[00:29:10] Speaker 00:
The question, again, as I started with is, what is the widget?

[00:29:13] Speaker 00:
Fintive has never actually said the widget must be software.

[00:29:16] Speaker 00:
And they haven't said what software in Apple's devices they are accusing as the widget.

[00:29:20] Speaker 00:
They simply haven't done it.

[00:29:21] Speaker 04:
So what more did they need to do?

[00:29:23] Speaker 04:
We all agree they didn't have to identify a particular source code file name.

[00:29:31] Speaker 04:
You're unhappy with them saying, look at how I use this device, and I see how I can call up all sorts of things.

[00:29:40] Speaker 04:
And in my experience, this is all being done by software.

[00:29:44] Speaker 04:
You're saying that's not enough.

[00:29:45] Speaker 04:
So what's the in-between that would be enough?

[00:29:47] Speaker 00:
Well, again, the characterization your honor just gave is beyond what their expert did.

[00:29:50] Speaker 00:
But even that, this is not a case about functionality.

[00:29:53] Speaker 00:
These claims are not about what a product can do.

[00:29:56] Speaker 00:
It's like the ultimate point or case that we cited in our brief.

[00:29:58] Speaker 04:
But you're saying they didn't identify software.

[00:30:00] Speaker 04:
What is the actual example of what they needed to identify that they did not identify?

[00:30:05] Speaker 04:
Now that we all know that source code file names is not necessary.

[00:30:09] Speaker 00:
Yes, your honor.

[00:30:09] Speaker 00:
Again, I would point you to paragraphs 312 to 315 of Dr. Chalmers's report at appendix 18768

[00:30:16] Speaker 00:
to 18771 where he identifies three different, two of them are software, we can dispute whether one of them is, but he at least said this is by name what I think it is.

[00:30:26] Speaker 00:
He cites documents about that particular feature, but he identifies it by name.

[00:30:30] Speaker 00:
Maybe a name is not necessary, but some description of a

[00:30:33] Speaker 00:
A thing that one can, we have to be able to tell what the widget is.

[00:30:37] Speaker 00:
For example, for claim 11, it requires retrieving a widget.

[00:30:41] Speaker 00:
It then requires provisioning the widget.

[00:30:43] Speaker 00:
So how can you tell if something is retrieved and then that same thing is provisioned without knowing what it is?

[00:30:49] Speaker 00:
How is Apple supposed to defend against an infringement allegation when we don't even know what they're accusing?

[00:30:55] Speaker 03:
you just quickly list some of the misrepresentations you think we heard today, if you haven't already gotten them out?

[00:31:02] Speaker 00:
Yes, as to the passes, Dr. Shama said, as to all of the past source code files, he said at his deposition those were not the widget.

[00:31:11] Speaker 00:
The characterization of Apple's witness, Mr. Diedrich, he was not Apple's expert, he was Apple's fact witness, but regardless he did not say

[00:31:20] Speaker 00:
The source code file that doctor Thomas happened upon at his deposition for the first time and pointed to our witness did not say that's in the source code.

[00:31:30] Speaker 00:
What he said was doctor Thomas when he came across that.

[00:31:34] Speaker 00:
At his deposition he was looking at a printout of the Mac source code and saw this file name in there and what our witness said is this file has no purpose on the Mac and I know that because if I look at the way it's named that is a naming convention that is used only in iOS devices and that was his basis for saying I think just the to the extent that council agreed with the characterization of our position as being about whether

[00:32:02] Speaker 00:
the widget retrieves confidential information again that's not our position.

[00:32:05] Speaker 00:
Thank you.

[00:32:06] Speaker 02:
Ms.

[00:32:07] Speaker 02:
Addy you've got two minutes.

[00:32:15] Speaker 04:
Ms.

[00:32:15] Speaker 04:
Addy, the retrieving a widget in the claim, is that retrieving a widget from the server?

[00:32:21] Speaker 04:
It couldn't be retrieving it from itself, right?

[00:32:25] Speaker 01:
Well, Dr. Schamer has testified that first the widget is provisioned and when it's provisioned it's

[00:32:31] Speaker 01:
it comes from the server but after it's provisioned it can come from the server or from the device because when he turns on the iOS device

[00:32:44] Speaker 01:
that he can see that it's there.

[00:32:45] Speaker 04:
I'm just trying to understand, if we don't know what the software is, and we're relying on this inference that there must be software somewhere, how do we know whether the limitations of retrieving and provisioning those so-called widgets is satisfied?

[00:33:04] Speaker 01:
We know that from all of the source code that Dr. Shamo cited and explained in paragraphs 309

[00:33:13] Speaker 01:
to 659 of his expert report.

[00:33:18] Speaker 01:
I heard a lot of factual, Your Honor, do you have a question?

[00:33:21] Speaker 01:
I heard a lot of factual dispute, and I just wanted to focus on two things, Your Honors.

[00:33:27] Speaker 01:
First of all, Dr. Shamos was clear.

[00:33:31] Speaker 01:
First, the district court seemed to want this one widget file.

[00:33:36] Speaker 01:
Dr. Shamos was clear that it's not like there's just a routine called widget.m.

[00:33:41] Speaker 01:
He said it's a combination of multiple pieces of software, some of which are pre-existing, some of which are not, and those components actually call each other.

[00:33:52] Speaker 01:
And that's why it's so complicated.

[00:33:54] Speaker 01:
And secondly, we presented much more evidence than the screenshots.

[00:33:58] Speaker 01:
As I think you know, those screenshots represented demonstrations.

[00:34:02] Speaker 01:
We presented Apple's own evidence that I highlighted in the opening, the file names that refer to specific important words, and

[00:34:10] Speaker 01:
the operability of the files.

[00:34:12] Speaker 02:
This is all about fact issues, and if you have no questions... Yes?

[00:34:23] Speaker 01:
Are you saying the widget has to correspond to the... The widget corresponds to the card that it is being retrieved for, Your Honor.

[00:34:41] Speaker 01:
OK.

[00:34:41] Speaker 02:
Yes.

[00:34:42] Speaker 01:
I'm not sure it's the contactless part personally, but it corresponds to the card.

[00:34:49] Speaker 02:
Let me tell you.

[00:34:50] Speaker 02:
I find this frustrating because you're saying we can show infringement by showing that the functionality of the widget is performed by taking screenshots and other evidence.

[00:35:01] Speaker 02:
And yet, I'm still, after 45 minutes here, I'm still not clear what the widget does.

[00:35:08] Speaker 02:
I can evaluate whether there's a genuine issue of material fact as to whether you presented evidence that it does what it's supposed to do.

[00:35:18] Speaker 01:
The widget corresponds to the contact cardless appellate.

[00:35:21] Speaker 01:
I was worried that you were invoking the near field communication.

[00:35:26] Speaker 02:
OK.

[00:35:26] Speaker 02:
All right.

[00:35:26] Speaker 02:
Thank you.

[00:35:26] Speaker 02:
Thank both counsels.

[00:35:27] Speaker 01:
You're welcome.

[00:35:28] Speaker 01:
Thank you, Your Honor.