Free Redacted Document - District Court of Delaware - Delaware

Case 1:04-cv—00360-JJF Document 202-6 Filed 07/25/2006 Page1 0f3
A]j%nion Net Patents zz
Maritz, Inc.
Hearing
june 7, 2006
Hawkins Reporting Service
715 NKing Street
Suite 3
Wilmington, DE 19801
(302) 658-6697
Original File 060706~ l.TX7§ 121 Pages
Min-U—Scrzpt® File ID: 3674544951
Word Index included with this Min-U-Scripte

AfH11i0¤§)§QeH402¥¤@/-00360-JJF Document 202-6 Filed 07/25/2006 Page 2 of 3 H€¤¤'i¤S
Maritz, Inc. june 7, 2006
1 *19399 4 program as that termis used inthe claims
1 - of the 561 ’412 atent? Aff1nion's ro-
IN THE UNITED STATES DISTRICT COURT m And [WO new faces for yOu’11/Ilchacl posed eonsrrnegion or 525 onlinepin-
Fon THE DISTRICT o1= oE1.AwAnE Harrl€Y anri 12] Marc Vrmqcr Turg frorn . . f nh h .
Arnnion NET PATENTS, 1 the Sennegin Powers firm in 151 St. Louis. slfrrrfzfc Prrfgramtrs is scr O crc rs [8]
5 5 IV I'O 111111.
P|°mH5’ ;o5A_NO_oa_sso_JJr 541 THE COURT: Good afternoon. a I ,5 M1 mccn C p g _ _ f h
191 We ve included a definition o w at
:lAH5TZ’ INC., l 5515MS. ROGOWSI$|:We also have ourl561 550] an lnccmlvc program 5s_5 damn think
oelenam 5 V Shear representat1ve,Steve Gallant mt e {naps __ 5555 that aspect of the denrrlrlon
W°“"°s°*Y·J“"° 7· Em 3 · is not in a huge 5121 amount of dispute.
5;;$5?0::,"4a [711-HE COURTZ All fight. Thank YOU. 181 That itincludesan incentive5131 program
Markman Hearing MS- Davis. that OPCFEIECS 3 pI`OgI'3Il'l 1`IOHIC pHgC Of
mf;;§j**gjlam 595 1v1s.uAv1s;Tt5ot5k you, Your nouot-. what 1141 wc thihk of as a wah page that
BEFORE: THE HONORABLE JOSEPH 1. FARNAN, Jn. 1101 And WC have p1‘€p211'CdH p0WC1‘·P0i¤E uses thc mtcmct [151 technology IO
United States District Court Judge pfgscnmtign [lll f()]_· guy prcscnbgtion present the pI`OgI`HIT1 O1] 21 pI'OgI'&IIl [16]
"'°PE’i5Z`5’E5"t$§Si5or5otS 55=5SH5t5uN55tu *°d**Y· h°‘“° pagc ““" *’°“““S “S°“ °f ‘h°
BY: took B. BLUMIENFELD, Eso. [12] I’vc also got hard copies of thc 1131 ‘“°°“F“’° HY] Pmgmm {O mtcmct Vinh .
BY¢ MARYELLEN N0F*E*l and- r ntern ec no o . .
mwrtt. noo. Eotsrtnttotot, po. ha dacumaata f¤tY<>¤t Haaat- °“g % , ° . $Y . . .
BY: snanon t. oAv1s, Eso. 1151 MHY1 — [191 Aftimon S Clam; COl;1SF1uCuOnblS_ I?]
Sli 25Eb'§£iiQ§E%2$F2§2t 222; ha THE <=¤¤ht= Yrs. you may. ,'?f,i§,"§§Orjg jj j§§,,,‘§§,,,r§§‘,C§§f, isrgfri
Cnuhaaltntthn Plaihtitla [17] MS. DAVIS: — pass these up? ns1 We boned by and based on 5225 me elarm
5,399 2 havc an extra C0PY» if thtat [*9] COPICS language itself ofthe asserted claims, 1231
Aapeananees eonnnoeor would ha mats uScf“1· the specification of the patent, and the
oonnouv, BOVE, LODGE s. nutz, up 5201 THE COURT: No. I wanted to make a 5241 prosecution history in which the
BY: RUDOLF E. HUTZ,ESC). f 1 _ S
nv; P;;;llC|A SMINK nooows1<1,Eso. L2;:,:r;i§?5;t;25C§£g 2 in ra;5,?,Ou5haV(g
SENNEG5N POWERS another copy of this? l P8-99 7
5251 MS. DAV|S:Yes. Would that be 5241 [U statements Conccmmg rhC_SCOPC af
hclpflll? the claims 521 that are asserted m the on-
BY: 1. BENNETT CLARK, ESQ. 7 BY; lim i¤€¤¤¤iV*‘> 131 Pf¤8¤m·
MARC VANDER TUIG, ESQ. Page 5 541 Maritz is asking the Court to read 151
5 BY: MICHAELPLARTLEXZ Esos Counsel 111THE C0URT= if you wahtto pass that ““““g°“S ima °”‘““§ i"°°““""" lm;
for Defendant 9 10 Also Present; 11 121 UP, YOU CHU. $md‘;‘ C1?2;?“d5;6]th°S°t at arg Comamc
MARIT Z, [NC. 551 (Following a discussion held off the 141 Kind? $m;gWé1rg1111?‘§2‘i_F;?cr;;5OE;° thats;
BY: STEVE GALLANT 12 13 14 15 16 17 rl-CC0!-d‘) l what is scr forth in rhc Clnirn language
18 19 20 21 22 23 24 [51 THE COURT:All right. irselit
MS. DAVIS: Thank ou Your Honor. · ·
page 3 [6] Y · 591 We start,as we always mustm claim 5101
_ . 571 May it please the Court, the patent 5s1 interpretation, by looking at the claim
[HTHE CLERKAH mrc that’s at issueinthis case,the ‘412 patent, itself 5111 and what the language of the
125THE C0URT= A11 rrght. Bc seated. 131 595 owned by ptatnttrr, Ammon Net otolm provides.Ar1d 5525 Claim 10 that to
p CHSC. Patents, relates 5101 to the technology of set forth here is exemplary of 5151 the
541 Good afternoon. _ the operation of incentive [111 programs claims that are being asserted and con-
5s5 (Everyone said Good arrernoonryonr through the use of various aspects of 1121 tains 5141 the disputed claim terms with
565 Honor.) internet technology. the exception of a [15] couple of terms
tHt¤¤¤at=¤<¤ant<»¤>t ¤¤¤¤ at 111;¥";°‘;*‘V§.§f§§.1;‘5‘§S;;i,;’f$,€";,““$3* 1;l1;5151;CE1Iu§gl11ig(rt(11nt11;1;n1;]t11t;1t)l;1le1[;1
w ic r w vi - -
at M5 ¤AV'S=Y¤S·Y¤¤t Ham- 5 yung points 5555 mom.; similarqyplg of being addressed in u5.5 independent
595 MR. CLARK: Yes,we are,Your Honor. Currgngy that people 5165 Collect and claims are 5181 included in Claim 10.
55n5 MR BLUMENFELD;Your Honor, 5ll5 then can use to obtain benefits, [17] [19] We startwithafcwthingsto note 5201
assumingthat me plaintiffwould go first rewards. The most commonly known about the language in Claim 10. First of
here, 5525 laelr Blumenfeld for me plain. type of pro_gram551s1 Ithink most of us are all, 5211 the preamble language describes
tifflalgng with my l]3]pa_ftncf’Mafyc1lc[] VCYY f?ll`Hl1lHI` wrth that [19] I`I.1I`IS 31011g (:1211111 10,as 111 [22] [11C l1'lVCI1UO1’1 C121IH1CC1
Noreilra, Sharon Davis, 5m Elizabeth these lines isafrequentflyer5201 program in Claim 10, as a method 5231 for re-
Brenner, and Steve Lieberman from rl-le where people collect miles based on the deeming incentive awards on an on-line
55s5 Rothwell pigg fum, [21] miles that they fly. 1241 incentive program. It is the method
5565 T1—1E COURT: Good afternoon. [aa Tha kay claim Cahatwatiah issue 1251 fat
_ _ that is raised in this case, although there
117] M11 BLUMENEELD:’;nd Ms' Dwi? ls are [241 multiple claim terms, as Your _ _ Pag° 8
ll§S%?;¤§1g?111;$gSr"rrrl§i; agtgrfgggmuon Honor is aware from 511 redeeming the points that are earned
_ — - nn an 521 incentive program.
5 1201 THE COURTZ All right.Th3¤k YOU. 1211 Pa9° 6 531 That’s in contrast to other claims 541
Ms. Rogowski. 511 the briefings that are at issue,the key which we‘ll look at of the ’-412 patent
5225 5ll5S_ ROGOWSKI: par Rogowslri for claim 521 construction issne relates to rhe that do 551 not specifically refer to being a
5235 derendanr Maritzl Also at defendanr constnuction of 531 the clatmterm on-lme methodforthe [6]1'CC1€I`l'lp[1OHp2f[OfIhC
table, Ben 5241 Clark, who will be doing IHCCUUVC Program- thvchttoh-
the presentation today, 141 And what is an on-line incentive 551 571Andthe second pointto make about 521
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Aft‘1nio£Hl&e11a01é’¢1t1=l/—(3.0360-JJF Document 202-6 Filed 07/25/2006 Page 3 of 3 Hearing
Maritz, Inc. june 7, 2006
11a1Imean,immediacywasone ofthe [19] 1221 We’re still doing this thing in 1231 think we are 121 onthe same wavelength,
advantages described. I think this also batch, because way back when the that Phillips certainly 131 has to be where
appears [20] in the related art section, patent applicant 1241 in 1994 or tive said we stan for the answer to these 141
does it not? this is old, and I’n1 going questions.
[21] Maybe even more relevantly, again, pa 9 96 151 And first of all, with respect to 161
1221 in order to distinguish prior art _ _ U th , g h where the analysis starts, Phillips, of
programs, the 1231 immediacy point was III E0 ztmprovclglizi 1; we 1 tt at; what course, 171 reaffirmed on Page 1312 that
really what — the argument 1241 that the we rcdtgmgtizlht . I aa: ttga {W an is the claims are what 181 defines the
applicant made.The word millage at the C t sy Ig ]S_I3I a a Ou ‘ invention. And the patentee —191 that’s
[4] So I In In 3· POSIUOII IO bore YOII fOr [5] Where the pateruee defines [heir [10]
Page 94 anotherhour,butIknowyou don twant invention, and thats Whete you start
111 point —- I think that’s supposed to be Hztcd I0· Isgisxgs 20 hive 0Ih°r_ _ Yvctgc your 1111 analysis.
mileage, 121 are not awarded until the grtégssc 3 I C at my [7] points m C 1121 And they cite to the example of the
U`¤V€I€l' ¤€ll¤lUY ¤lI<€$ l5l thc Ilhht- S I émtma k f Nh, in d HCC b t 1131 Vitronics case.So there’s no rejection
141 You have to wait to geta 151 certificate it.] t;lVct_c,S Sgmghmls nzwvssmtgg S in the 1141 Phillips case, and I think it
before you can use it. You know how 161 . g Y would be a [15] misreading of the Phillips
Sharon if [10] I could even reserve a .
frequent flyers work. minutgm sit rebut They mt dOn,t bear case to suggest that 1161 1I departs from
171Anothetdisadvantage.yo¤ have to1a1 the hurdenenrltisandseiweuid1121111te ‘I“? W°II‘°$“'°I'sh°d l’““°‘l°I° I"' ***3*
plan ahead- Geez, l want to fly to LA on to do that ir something new is raised. °I‘*"“ language "‘““c"s·
my [9] frequent flyer of the [r]()n[h_ ;[’ve I . I tt I. d d [18] MHFIIZ dOCS1'lj[ W21'l[ IO [OO-ITIUCII
got to plan 1101 ahead, because they’ve qiltlggggilgtigstgés $0:2:1 Km an goo 1191 about the clatm language lntthis case
got to mail it to me. 1111 That was a THE COURT S Th b€€¤ll$€ the l20lIll'l"llUlll0¤5 LIl€Y 1'€ ¤'Ylllg
disadvantage' You dOn’r have [12] irn, d ' uI§' C rcasgnwc [16] {O add are HOI IH thc [21] claim language,.
mediate redemptionoveropponiutities. °"° . C ° an tm"? ““ °' S°'“° But that does have to he the 1221 plaee
h h d _ _ COHSIIHIHKS, [17] WC IHW/ic EI Delaware Where you s[Hr[_
lm A“t§I.‘ ?“ at ‘ .° °“ ·“‘ a “‘°“· I"‘I Bench and Bfat and Jllstlee llhl Hhllahd 1231 And then you use the specification
ansi I is ls Pamcularly ml€Vam’ We has bccn VUV P°rs“aSIV°· he Caucd mc 1241 and the prosecution history to tell
[hulk, to [15] thls Case, the CHIOHCC fnust [19] up and Suggested we Hmsh you what thc
allow fOI` pI'OCCSSiI`1g [16] [IIRC bCfOI`€ thc everything [WO [20] O'elOCk so Del-
bonus points are recorded and 1171 made aware lawyers would have no excuse 1211 page ee
available as redeemable credits. for no; 21m;11dj1~1g_ [1] language that is used in thc Claims
[18] Now, why is this relevant? Because [22] He told me on the phone call that he moans and hgw 121 you understand 11·1a1_
1191.for many years, Maritz has handled its 1231 had — he told me to come.Told me to We did not Como inrg Your 131 Honor and
I POIHIS OH [20] 3 b2[CI`1 pI'OCCSS. Batch COHIC. IIITI [24] $[111 21 II'lCl'I`lb€1' of [IIC preserlraelgirn egrlstruetjgn based on [4]
processing is where you 1211 take all the Delaware Bar, so I’ll be lgoking at n ojononnry do5nn1on_
t1a¤Saetl<>¤.1><>·¤ts that are gzathcrcd WI 151 We came in and presented aclaim 161
;ItIni;lCb¤l€h1 In ii gl'0llP- TIICYC s s delay III m there agg 97 construction that is based on starting
· · with the 171 claim language, and then
1231 It can be a day. It can be — I 1241 think 121 And he said that he had met with all 131 taking that Clairn [8] language and looking
there’s some evidence in this case, the large Ilaw tirtnstantl toltii thetnu to at now n tits into the [9] invonnon that
COIIHC. O [4121pO Og1ZC OI`?]. tt C 1t— was described in the [10] specification,
_ _ ***99 95 usually l give an 151 hout and a half. But which includesaspecitic 1111 description
111 sometimes lt can be quarterly, I mean, today’s a special day, and 161 I had already of problems that are focused on nz]
every four 121 months where you gather scheduled this before I got his 171 phone rooempnone an Ofthe rogmm ofthe
all of these transactions 131 together, call, [13] ptefettedp embodttgcnt that ad_
vvhete people have been engaged in the 1s1 So 1 - dresses specincauy 1141 award re-
I"I g°;‘d“°‘1 gd "°“§;° ‘;°,”‘:";?s· 6 191 Mn. CLARKZ'I`his is all. d°II;P[IO¤· ang] sdvantages tot the ig-
l5l U YOU 0 YHWZY C OIH S Cfl 1 _ ven lon 1151 a are spec ica y a -
this passage oftime.And Maritz has been Im] TIQE COUR-rl;_S rcspcclguuy gc` dressed by award 1161 redemption.
doing l7l this for tnany years- SIXTH .I“' tO t C “I”°m° °““‘ ut [17] it is inaccurate to say that the nai
1131 This is part — one of the reasons 191 We H gwc you a [12] mmutc Or two` invention described in the specification
why Affinion is lighting against the [I3] MR- C_I··ARK;IIIs_ C0PI0IIs III_III_c [I4] is [19] limited to a product purchase,on—
immediacy 1101 requirement, because bI`ICIs· Its IIOI ss I-I 0IIY of LIIIs Is lIsl line product [20] purchase invention.
they know that as one of our 1111 grounds Pattlchlatly new- on One more thing fl-Om Phillips before
of non-infringement, we don’t immed- lI6l So thank You VCIY much- 1221 1 turn more to some or the factual
EIICIH E5] avvatld POIIIYS- We do them ln [17] MS. DAVlS:Allright,YourHonor.11g1I issues is 1231 Maritz tries to suggest that
sm · WaYs svc- think I’ll startfirst addressing some ofthe the Phillips case 1241 has wiped out all of
1131 Done them for years, and that is 1141 [19] issues that were raised at the beg- the case law about how you
specifically the aspects ofthe prior art at inning of [20] Mr. Clark’s argument with
the 1151 bottom here that they said that particular respect to [21] the legal stan- *3699 I00
theirinvention [16]OVCI'C21l'1’lC,I1'lC precise dards and the legal decision making [22] lll deal with the fact that a patent may list
thing that we’re doing, [17] and, frankly, process as it stands after Phillips. several 121 objectives and doesn’t have to
, .Il1dS€s €0mlllll€ Y0 do- 1231 Andl just want to take issue with 1241 IIICIIKIC ?III those ls] ohieetives Ill eaeh
1101 Because it’s one of the ways we feel some of the things that Mr. Clark said. and CVCIY CIsIIm·
[19] we avoid their patent. Batch pro- And just 141\Vell,toPhillips,we usually don’tl5lget
cessing is not 1201 the hippest 21st back this farin the Phillips case.Butif 161
century thing to do. Immediacy 1211 is *:1399 98 you look at the Phillips case, Page 1327
where it’s alt, obviously. 111 by reference to the Phillips case, I where 171 theCou1·tisact11allyaddressi11g
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