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Oracle and Google Tell the Court the Claim Constructions They Agree and Disagree On
Thursday, February 24 2011 @ 11:42 PM EST

Oracle and Google have filed a joint claim construction statement [PDF]. This is a standard thing that you have to do in all patent infringement cases in the U.S. District Court for the Northern District of California. It's a statement where the parties let the judge know how they each construe the words in the patents allegedly infringed.

What's a claim construction? I'd say it's where the parties argue about how to define words quantifying how many angels can fit on the head of a pin. But, that's me. I hate patent law. Here's how a patent lawyer explained claim construction on Patently O a couple of years ago. He loves patent law, so I'll let him tell you all the details.

Here's what I understand of it: patent applications are written in words, so to decide whether a patent has been infringed or not, you have to figure out what the words meant to the inventor and those skilled in the art at the time the patent was applied for. And of course, lawyers can't ever agree on specifics when so much is at stake, so they tell the judge what they can't agree on, and then the judge decides. This is early in that process.

Well, it's not just me. Here's what Edwin Howard Armstrong, inventor of regeneration and FM radio, said in a speech, quoted in a chapter on claim construction from a Canadian perspective:

"It is a long time since I have attended a gathering of the scientific world - a world in which I am at home - one in which men deal with realities and where truth is, in fact, the goal. For the past ten years I have been in exile from this world and an explorer in another - a world where men substitute words for realities and then talk about the words. Truth in that world seems merely to be the avowed object. Now I undertook to reconcile the objects of these two worlds and for a time I believed that could be accomplished. Perhaps I still believe it - or perhaps it is all a dream.".
You may feel similarly as you go down the list of disputed definitions, that winning is the object, not truth for its own sake.

Most of you are more on the side of science, where truth is the object, so expect a bit of a culture clash. This is, all resources I could find agree, about the most important process in patent litigation. You can win the ballgame if you win this part of the whole.

The filing:

02/22/2011 - 91 - CLAIM CONSTRUCTION STATEMENT filed by Google Inc., Oracle America, Inc.. (Peters, Marc) (Filed on 2/22/2011) (Entered: 02/22/2011)

Here's a description of a case that turned on claim construction, if you can stand to read more about it, by Justin E. Gray, a litigator at Foley & Lardner. He also has a piece on local rules for claim construction, including the rules [PDF] in the Northern District of California, which is where Oracle's claims will be heard.

Here's where Oracle and Google are now in the process set forth as Gray describes them:

* 30 days after exchanging proposed constructions, the parties must file a Joint Claim Construction and Prehearing Statement containing the following:
1. agreed-upon constructions;
2. each party's construction of each disputed claim term, including identification of intrinsic and extrinsic evidence in support of the party's position;
3. identification of the most significant claim terms, up to a maximum of 10 terms, including identification of terms that will be case or claim dispositive;
4. anticipated length of time needed for claim construction hearing;
5. whether any party plans to call witnesses, the identification of each witness, and summaries of opinions to be offered by each witness;
And here's what happens next:
* 30 days after filing the Joint Claim Construction and Prehearing Statement, claim construction discovery ends;

* 15 days after claim construction discovery ends, the party claiming patent infringement (or the party asserting invalidity if there is no infringement issue in the case) files its opening claim construction brief;

* 14 days after the opening brief filing, the opposing parties file their responsive briefs;

* 7 days after the responsive brief filing, the party claiming infringement (or the party asserting invalidity if there is no infringement issue in the case) files its reply brief;

* 2 weeks after the reply brief filing, the Court will then conduct a claim construction hearing, if necessary, subject to the convenience of the Court's calendar.

The parties ask the judge that at the eventual Markman hearing, the hearing on claim construction, he decide the construction of these six terms:
II. PATENT L.R. 4-3(b): PROPOSED CONSTRUCTIONS OF DISPUTED TERMS

Pursuant to ¶ 5 of the Court’s November 19, 2010 Case Management Order (Dkt. 56), the parties request that the Court address the following six terms or phrases at the claim construction hearing:

1. resolve / resolving (‘104 patent)

2. computer-readable medium (‘104, ‘447, ‘476, and ‘520 patents) / computer usable medium (‘702 patent) / computer-readable storage medium (‘720 patent)

3. intermediate form code / intermediate form object code (‘104 patent)

4. the play executing step (‘520 patent)

5. reduced class file (‘702 patent)

6. symbolic (data/field) reference (‘104 patent)

The chart attached as Appendix A contain each party’s proposed constructions of these disputed claim phrases, together with an identification of intrinsic evidence and extrinsic evidence proffered by the parties in support of their constructions. Each party reserves the right to refer to the evidence proffered by the other.
Of course, they reached the maximum and have listed "the ten claim terms whose constructions are believed to be most significant to the resolution of this case, as well as those whose construction is believed by either Google or Oracle to be case or claim dispositive."

For example, here's how Oracle says the term 'computer-readable medium' should be defined in connection with its '104 patent:

a storage device for use by a computer
It cites a bunch of dictionaries as external references, or as the law calls them external evidence.

Here's how Google suggests the same phrase should be defined:

any medium that participates in providing instructions to a processor for execution, including but not limited to, optical or magnetic disks, dynamic memory, coaxial cables, copper wire, fiber optics, acoustic or light waves, radio-waves and infra-red data communications
It cites as "Internal/External Evidence" the following, and I've reformatted it a little, so it's a little more clear, I hope:
Intrinsic/Extrinsic Evidence:

‘104 patent at 1:20-2:9; 2:25-34; 3:31-67; Fig. 2; and claims 11-41 (In citing the foregoing portions of the ‘104 patent, Google does not concede that this phrase has adequate support under 35 U.S.C. § 112).

‘520 patent at 4:48-54.

‘447 patent at 4:58-65; 5:4-6:16; Fig. 1.

‘476 patent at 4:57-66; 5:4-6:18; Fig. 1.

‘702 patent at 2:62-4:60; 5:61-6:20; 6:37-7:18; Figs. 1, 2.

‘205 patent at 4:38-54; Fig. 1.

U.S. Patent No. 5,903,899 at 17:20-57.

See also, other patents issued to Sun/Oracle that claim, define or otherwise describe “computer-readable medium” or similar related phrases

(http://patft.uspto.gov/netacgi/ nph-Parser?Sect1=PTO2&Sect2=HITOFF&u=/ netahtml/PTO/search-adv.htm&r=0&p=1&f=S&l=50 &Query=AN/Sun+and+%22computer-readable+medium%22&d=PTXT).

For example:
U.S. Patents Nos. 5,953,522; 5,946,489; 5,970,249; 5,978,588; 5,983,021; 6,115,715; 6,853,868; 6,272,517; 6,271,838; 6,542,920; 6,938,085; 6,983,455; 6,499,049; 6,952,760; 6,980,916; 7,278,132; 5,630,136; 5,659,758; 7,213,240; 6,047,377; 6,044,467.

Upon information and belief, Sun’s Star7 (*7) was a prototype for a SPARC based, handheld wireless PDA, with a 5” color LCD with touchscreen input, a new 16 bit --5:6:5 color hardware double buffered NTSC framebuffer, 900MHz wireless networking, PCMCIA bus interfaces, multi-media audio codec, a new power supply/battery interface, a version of Unix that runs in under a megabyte, including drivers for PCMCIA, radio networking, touchscreen, display, flash RAM file system, execute-in-place, split I/D cache, with cached framebuffer support, a new small, safe, secure, distributed, robust, interpreted, garbage collected, multi-threaded, architecture neutral, high performance, dynamic programming language, While the Star7 may have never entered commercial production, Oak, the language behind it all, became the very popular Java programming language.

See generally,
http://www.youtube.com/ watch?v=Ahg8OBYixL0;

http://www.helium.com/ items/1101180-the-history-of-java;

https:// duke.dev.java.net/green/;

Todd Greanier, Java foundations (Sep 17, 2004) at 2-3

(http://books.google.com/ books?id=vbBXKgDJun0C&pg=PA2&l pg=PA2&dq=sun+star7+gosling&source=bl&ots= LeQNYvs_DE&sig=IR3Wp6fNM58OFdyIzz3sEqgCTi4&hl= en&ei=d89eTaKSEoKBlAeAtYCfDA&sa=X&oi=book_result &ct=result&resnum=8&ved=0CEgQ6AEwBw#v= onepage&q=sun%20star7%20gosling&f=false).

That's just one phrase.

It's not listed here by either party, but as I was researching this topic, I came across an interview from 2000 with James Gosling, the father of Java, and Dennis Richie and Bjarne Stroustrup. I couldn't help but notice this answer by Gosling to the question of what inspired him when he was writing Java:

I've used a lot of languages, and a lot of them have been influential. You can go through everything in Java and say, "this came from there, and this came from there."
That's the difference between scientists and patent lawyers, eh? Scientists know they build on the work of others; they don't pretend they created the universe all by themselves and should therefore be paid for it.

  


Oracle and Google Tell the Court the Claim Constructions They Agree and Disagree On | 85 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Here we go
Authored by: rsteinmetz70112 on Friday, February 25 2011 @ 12:01 AM EST
Down the rabbit hole of the alternate reality of patent law.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Corrections here
Authored by: SpaceLifeForm on Friday, February 25 2011 @ 12:45 AM EST
If any.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

NewsPicks commentary here
Authored by: SpaceLifeForm on Friday, February 25 2011 @ 12:47 AM EST
Please include the link to the article
for future readers since it will roll
off of the main page.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

COMES notes here
Authored by: SpaceLifeForm on Friday, February 25 2011 @ 12:48 AM EST


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

OT Here
Authored by: SpaceLifeForm on Friday, February 25 2011 @ 12:50 AM EST
Quad trick.

Please make any links clickable.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Minor comment
Authored by: Ian Al on Friday, February 25 2011 @ 04:38 AM EST
For a moment I thought they only covered the patents put to the USPTO for review, but I was wrong. However, in my review I noticed one thing, but could not see any significance to it. It might mean more to you.

They have no stated disagreements over meanings in patent 205.

From the Oracle Attachment,
The 205 Patent

1. In a computer system, a method for increasing the execution speed of virtual machine instructions at runtime, the method comprising:

receiving a first virtual machine instruction;

executing said new virtual machine instruction instead of said first virtual machine instruction.

The method of claim 1, further comprising overwriting a selected virtual machine instruction with a new virtual machine instruction, the new virtual machine instruction specifying execution of the at least one native machine instruction.

Infringed by:

Android uses the Dalvik virtual machine to execute virtual machine bytecode instructions at runtime. The Dalvik virtual machine performs certain optimizations to increase the execution speed of virtual machine instructions at runtime.

Android’s Dalvik virtual machine receives a first virtual machine instruction.

generating, at runtime, a new virtual machine instruction that represents or references one or more native instructions that can be executed instead of said first virtual machine instruction; and

JIT-enabled Android devices execute new virtual machine instructions representing or referencing native machine instructions instead of the original bytecode.

To the extent Android does not literally infringe this claim element, Android contains equivalent elements corresponding to each and every requirement of this claim limitation. When the Android JIT compiles a trace, Android adds the corresponding bytecode instruction counter of the bytecode (the first virtual machine instruction) and a pointer to the compiled trace to the jitEntry table. When interpreting the instruction located at the bytecode instruction counter, Android does a lookup of the bytecode instruction counter in the jitEntry table. If Android finds an entry, Android will execute a branch to the compiled trace instead of executing the bytecode instruction. The differences, if any, between a “new virtual machine instruction” and an entry in the jitEntry table are insubstantial. An entry in the jitEntry table (1) performs the same or substantially the same function (direct that native code be executed in place of bytecode) and (2) works in substantially the same way (store a pointer to native code at a location indexed by the bytecode instruction counter) (3) to achieve the same or substantially the same result (faster execution) as this element of the claim.

They do, however, cite 205 as intrinsic/extrinsic evidence.

I have not included the whole of the relevant passages because I only wanted to give a flavour of the words on which they appear to have agreed the meaning.

If anyone wants to do anything more rigorous, let me know and I will provide a linky to the attachment (actually a Google attachment of Oracle material).

---
Regards
Ian Al
SCOG: Yes, they hit the ground. The lawyers are now taking them to the centre of the Earth. The 'centre of the Earth' is irony.

[ Reply to This | # ]

42
Authored by: Anonymous on Friday, February 25 2011 @ 05:24 AM EST
Angels on the head of a pin.

(Depending on how large the head of the pin and the definitions of the terms "angel", "pin", "head", "the", "of", "on", "a", "42" and who wins).

[ Reply to This | # ]

  • 42 - Authored by: Anonymous on Friday, February 25 2011 @ 06:05 PM EST
Amstrong eventually gave up n/t
Authored by: Anonymous on Friday, February 25 2011 @ 08:51 AM EST
.

[ Reply to This | # ]

Alternative definitions of 'computer readable medium'
Authored by: YurtGuppy on Friday, February 25 2011 @ 08:57 AM EST

internet attached Magic 8 Ball

---
just swimming round and round

[ Reply to This | # ]

"garbage collected"? Is that a real term in programming?
Authored by: rocky on Friday, February 25 2011 @ 11:19 AM EST
I saw this line in the Google description of that little computer.
"a new small, safe, secure, distributed, robust, interpreted, garbage
collected, multi-threaded, architecture neutral, high performance, dynamic
programming language"

I've never heard of that phrase, "garbage collected", used among other
such technical terms. Is that common? And what does it actually mean?

[ Reply to This | # ]

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