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And another detail about "dynamic" that Google and David August did not miss | 439 comments | Create New Account
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And another detail about "dynamic" that Google and David August did not miss
Authored by: dio gratia on Tuesday, May 15 2012 @ 01:26 AM EDT

In OraGoogle-137.pdf (253 KB, PDF), CLAIM CONSTRUCTION ORDER. Signed by Judge Alsup on May 9, 2011, Judge Alsup seems to make a convincing argument for dynamic:

The ’104 patent teaches two different types of data references: numeric references and symbolic references. The claimed invention includes an interpreter with two different sub-routines: “a static field reference routine for handling numeric references and a dynamic field reference routine for handling symbolic references” (col. 2:42–44). Computers stored data in memory locations defined by numeric addresses. A numeric data reference was one that identified data directly by its memory-location address. For example, the command “load the data stored in memory slot 2” contains a numeric reference to the data stored in slot 2 (col.1:26–41). The claimed invention would use a static subroutine to interpret this numeric data reference — all it would have to do is go get whatever data is stored in slot 2. The data stored in slot 2 might turn out to be, for example, “17” (col. 5:24–31).

A symbolic data reference, on the other hand, did not identify data directly by its memory-location address. Instead, a symbolic reference identified data by a “symbolic name” (col. 1:64–67). For example, the command “load the data called y” contains a symbolic reference to the data called y. The claimed invention would use a dynamic subroutine to interpret this symbolic reference — it would have to figure out that “y” means “17” or that “y” means “the data stored in memory slot 2,” and then get the data called y (col. 5:13–19). Figure 8 depicts the step of rewriting a symbolic reference as a numeric reference, which is included in some embodiments of the invention.

This contrast between symbolic references and numeric references pervades the asserted claims. Claim twelve, which is reproduced above, discloses “resolving a symbolic reference” to include the substeps of “determining a numerical reference corresponding to said symbolic reference, and storing said numerical reference in a memory” (col. 7:33–37). Many of the other claims contain similar language.

The numeric and symbolic references discussed in the ’104 patent are references to data. The patent discloses these two types of data references in opposition to one another, and the specification refers to symbolic data references as references made by a “symbolic name.” These observations from the intrinsic record shall guide construction of the disputed term. The patent’s distinction that symbolic references are resolved in a dynamic manner, whereas numeric references are resolved in a static manner, provides a further gloss that would be useful to a jury. On the other hand, delving into extrinsic dictionaries to construe the term “symbolic reference” is unnecessary. Google’s proposed modifier “string- or character-based” does not correspond to any terms or concepts appearing in the intrinsic record and will not be read in from the proffered extrinsic sources.

In its critique of the tentative claim-construction order, Oracle counsels against adopting a gloss that refers to dynamic resolution. First, Oracle cites intrinsic evidence it interprets as showing that symbolic references “need not be resolved dynamically” (Dkt. No. 132 at 1–2). This evidence concerns only the prior art. Although the abstract concept of a symbolic reference may not require dynamic resolution, the concrete invention claimed by the ’104 patent resolves symbolic references dynamically. Thus, for purposes of any infringement or invalidity analysis in this action, the dynamic-resolution gloss is apt. Second, Oracle voices concern that the word “dynamic” has “many nuanced meanings that depend on its use in context” (id. at 2). Because this word comes directly from the ’104 patent, its use therein will further inform the construction of “symbolic reference.” The word “dynamic” is not being imported from a vacuum. Third, Oracle points out that “Google’s programmers wrote that Android ‘converts symbolic references into pointers,’ using the same language that the patent does.” Oracle warns that construing the term “symbolic reference” to require dynamic resolution might help Google “slip the noose of its own creation” by arguing that its symbolic references do not infringe the symbolic references disclosed in the patent (ibid.). This is not a compelling reason to adopt or forego an accurate claim construction. The term “symbolic reference” shall be construed as “a reference that identifies data by a name other than the numeric memory location of the data, and that is resolved dynamically rather than statically.”

Bold emphasis added. I'd think about betting money this claim construction would not be reversed. The claim limitation Judge Alsup quotes is found in the patent abstract as well as the written description in Col 2:42-44), that the symbolic references are handled by an interpreter, that is to say dynamically while a program is running.

Looking at the example for Hello World in Oracle's patent phase opening slides, (PDF 5.5 MB, sheet 7) you would note that the conversion to a numeric reference occurs when running the dx tool, which doesn't appear to be present in Android on a handset and doesn't occur when running a virtual machine, Java or otherwise.

Column 2 of RE38,104 can conveniently be found on page 109 of OraGoogle-01.pdf (4 MB, PDF), the original Complaint For Patent and Copyright Infringement.

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