[00:00:24] Speaker 00: Final case for argument this morning is 1-4-1542 Microsoft Corporation versus Proxycom. [00:00:33] Speaker 00: Mr. Vandenberg, we've got a cross appeal here and I understand you're only going to use five minutes for your main argument. [00:00:39] Speaker 00: Yes, Your Honor. [00:00:40] Speaker 00: I think we appreciate why, because your appeal is more limited than a lot of cross-appeal issues. [00:00:46] Speaker 01: Yes, Your Honor. [00:00:47] Speaker 01: May it please the Court. [00:00:49] Speaker 01: On our appeal, the sole issue [00:00:52] Speaker 01: is whether Claim 22's searching step requires performing multiple digest comparison operations as the Board effectively found at Appendix 36. [00:01:07] Speaker 01: And our position is that it was legal error for the Board to read into Claim 22 something we submit is not claimed, wasn't even disclosed in the specification, [00:01:19] Speaker 01: and is not necessary to achieve the claimed result. [00:01:22] Speaker 00: Well, you want us to construe searching to be equivalent to comparing, right? [00:01:27] Speaker 00: No, Your Honor. [00:01:28] Speaker 01: No. [00:01:29] Speaker 01: And that was patent owners' argument that we were seeking that. [00:01:33] Speaker 01: But Microsoft never sought that below, doesn't seek that here. [00:01:37] Speaker 01: What we are, our proposed broadest reasonable interpretation was that search means check for with the corollary that it does not require checking for multiple [00:01:50] Speaker 01: digests during a single search. [00:01:53] Speaker 01: Where we get that from is from the specific... Check for what? [00:01:56] Speaker 00: What's the end of that sentence? [00:01:58] Speaker 00: Check for what? [00:01:59] Speaker 01: Check for what the claim is searching for. [00:02:00] Speaker 01: The claim says searching for data with the same digital digest in said network cache memory. [00:02:07] Speaker 01: The broadest reasonable interpretation of that is to check for data with the same digital digest. [00:02:14] Speaker 01: So what does that mean in this continent? [00:02:16] Speaker 01: And we get check for from figure five. [00:02:18] Speaker 01: So figure five has a step that says check for. [00:02:21] Speaker 01: And then if you go to the specification, the counterpart says search. [00:02:25] Speaker 01: So it equates those two things. [00:02:28] Speaker 01: And often how you search depends on what you're searching for. [00:02:33] Speaker 01: This claim does not restrict how you search, but it does say what you're searching for. [00:02:38] Speaker 01: And effectively what you're searching for is a particular version of a particular document. [00:02:44] Speaker 01: So you want to find out whether or not your local machine has not only the same copy as the remote document, but it's the same version. [00:02:54] Speaker 01: And it's important to note that you do not need to use the digest to find the local copy of the document. [00:03:01] Speaker 01: If I'm looking for a particular brief, I can use its file name, I can use something else. [00:03:07] Speaker 01: And the patent makes that clear. [00:03:09] Speaker 01: At column one, line 21, it talks about [00:03:12] Speaker 01: the prior art, the admitted prior art, it talks about searching your local cache to see if you have a copy of the document. [00:03:21] Speaker 01: It's not using Digest to do that. [00:03:23] Speaker 01: Where did Digest come in? [00:03:24] Speaker 01: Digest come in as part of the alleged invention to then verify whether that copy of the document you found in the local cache is indeed the exact same version. [00:03:35] Speaker 01: Is it the same version of the brief or is it an earlier version of the brief? [00:03:39] Speaker 01: And that's why the claim does not require doing multiple digest comparisons. [00:03:45] Speaker 01: All you have to do is find the document on the receiver side. [00:03:49] Speaker 01: You may use file names. [00:03:51] Speaker 01: The patent doesn't specify how to do it because it admits the prior art. [00:03:54] Speaker 00: I guess I'm a little confused. [00:03:55] Speaker 00: I thought my first question was whether or not the claim construction you proposed involved just comparing the digests of two objects. [00:04:06] Speaker 00: Is that not what you're telling us? [00:04:08] Speaker 01: Is your... What we're submitting, Your Honor, is compare, in this specification, comparing digests is the last step of the search. [00:04:19] Speaker 01: It's not the entire search. [00:04:21] Speaker 01: First, you have to find the correct digest to compare. [00:04:26] Speaker 01: You have to look at the receiver. [00:04:28] Speaker 01: The receiver may have a thousand documents on it, lunch menus, spreadsheets, the blue brief in our case. [00:04:35] Speaker 01: You find the blue brief in the case. [00:04:37] Speaker 01: You don't use digest to do that. [00:04:39] Speaker 01: That's part of the search. [00:04:40] Speaker 01: You find that candidate and then you do your single digest comparison operation to determine whether or not it's the correct version of the blue brief. [00:04:50] Speaker 01: Proxycon expert Dr. Kincinski admitted this at A671 and A673 where he said you would not compare the received [00:05:04] Speaker 01: to a digest for some different document, just as if I'm looking at my local machine to see if I have the final version of our blue brief, I'm not gonna compare its digest to a digest of the red brief or the yellow brief, and Dr. Kincinski explained that. [00:05:21] Speaker 01: And again, the board, though, dismissed Perlman prior art and Yeo prior art because those prior art references did the same thing that the Goldstein patent does. [00:05:31] Speaker 01: It looked at [00:05:33] Speaker 01: It found the corresponding digest. [00:05:36] Speaker 01: In Perlman, for instance, and this is undisputed, there were a number of digests all associated with different data fragments. [00:05:42] Speaker 01: Perlman found the right corresponding one. [00:05:45] Speaker 01: If it's data fragment three, I find the digest for data fragment three, and then I compare those two digests. [00:05:53] Speaker 01: That tells me whether or not I have a verbatim copy, and therefore we submit that the board [00:05:58] Speaker 01: committed legal error because, again, it read in this notion of multiple digest comparisons as part of the single surge, but the claim is very broad. [00:06:07] Speaker 01: It just says surge, doesn't require that, and the specification doesn't even disclose that. [00:06:12] Speaker 01: That is critical sign that the board made legal error. [00:06:16] Speaker 01: They required something that is nowhere in this patent specification. [00:06:19] Speaker 01: Nowhere does it say, I do an initial digest comparison, and then I continue the surge and do another digest comparison. [00:06:27] Speaker 01: Thank you for the rest of my time. [00:06:29] Speaker 00: Thank you. [00:06:37] Speaker 00: Mr. Wheelock. [00:06:41] Speaker 00: Good morning, Your Honor. [00:06:43] Speaker 02: My name is Brian Wheelock. [00:06:44] Speaker 02: I'm here on behalf of Proxycon, here with my co-counsel, Mr. Greg Meyer, and may it please the court. [00:06:53] Speaker 02: We're here because searching means searching. [00:06:57] Speaker 02: Mr. Vandenberg pointed out we're talking about the language of plane 22. [00:07:01] Speaker 02: Plane 22, which is on the record, 885. [00:07:05] Speaker 02: The step we're talking about is searching for data with the same digital digest in said network cache memory. [00:07:12] Speaker 02: We're trying to find the file that is indexed at this digital digest. [00:07:17] Speaker 02: We don't already have the digital digest and we're not comparing or checking to see whether these two versions are the same. [00:07:23] Speaker 02: This step is literally, you get this digital digest, the client who wants this data gets a digital digest from the source that has it. [00:07:32] Speaker 02: And now they're saying, do you have this version? [00:07:35] Speaker 02: Okay, let me search through all the files I have and if I have something with the same digital digest, then that means I have this file. [00:07:42] Speaker 02: You're searching for data. [00:07:43] Speaker 02: based on this digital digest, you don't already have it, you're not doing a compare, you don't know whether you have it or not. [00:07:49] Speaker 02: You may not have it, it may have been deleted, it may have been altered. [00:07:52] Speaker 02: So what this step requires, literally, and quite simply, is searching for data. [00:07:57] Speaker 00: Can I move you into your cross appeal? [00:08:00] Speaker 00: Because there's so many issues there. [00:08:01] Speaker 00: OK, sure. [00:08:02] Speaker 00: Let me start with the kind of what I think are process issues. [00:08:05] Speaker 00: I understand that you make one argument that we couldn't remand this case. [00:08:11] Speaker 00: Let's assume we said, [00:08:13] Speaker 00: no on anticipation, but it goes back on obviousness. [00:08:16] Speaker 00: Let's assume that we disagreed with some of the claim constructions. [00:08:19] Speaker 00: This is on your side. [00:08:20] Speaker 00: And it seems to me you make an argument that because that would carry us beyond the 18 months in the statute, we don't have the ability to remand here, or at least the PTAB can't look at it again because the 18 months are up. [00:08:34] Speaker 00: Is that your position? [00:08:35] Speaker 02: Well, we don't see anything in the statute and regulations that will house further proceedings. [00:08:40] Speaker 02: So since this court can construe claims, this court can alter the existing decision. [00:08:46] Speaker 02: But if it goes back, what rules govern? [00:08:48] Speaker 02: Are there time limits? [00:08:50] Speaker 02: this just wasn't provided for it wasn't well thought out. [00:08:52] Speaker 00: Well it seems like that the rule you're proposing what I mean reality is that by the time a case gets up here on appeal that the 18 month limit then under your analysis would foreclose any remand. [00:09:06] Speaker 00: It would just allow us to either reverse or affirm but that we would be foreclosed from ever remanding the case back to the PTAB. [00:09:14] Speaker 00: Is that your position? [00:09:15] Speaker 02: We don't see any other alternative so yes that is our position. [00:09:18] Speaker 00: Let me move you to then this question. [00:09:21] Speaker 00: We're going to, brought up reasonable interpretation, I think is elsewhere covered, but I'm particularly interested in this motion to your ability to amend. [00:09:31] Speaker 00: What is your view of what the PTAB did here? [00:09:36] Speaker 00: Were they taking the regulations, the regulation that says the amendment does not respond to a ground of unpatentability involved in the trial, and saying therefore they could use the DR, is it DRP? [00:09:49] Speaker 00: Yes. [00:09:50] Speaker 00: Because that was one of the grounds, even if it wasn't the grounds for this claim. [00:09:54] Speaker 00: Or were they just saying, no, we can go beyond that, and we can just apply that other case we have, essentially, that requires that the patentee [00:10:04] Speaker 00: deal with all of the prior art that he knew about, et cetera. [00:10:08] Speaker 02: I think it's the former that we were foreclosed from arguing this because they broadened the issues. [00:10:16] Speaker 00: I'm sorry. [00:10:18] Speaker 00: Well, you don't think you were foreclosed. [00:10:22] Speaker 02: We don't believe we should be foreclosed. [00:10:24] Speaker 00: No, your position isn't that you were required to differentiate between DRP, right? [00:10:31] Speaker 00: your position that you should have only in your motion to amend you should have only been required to make arguments with respect to the prior art that was asserted against the claims that are in the plan. [00:10:45] Speaker 00: Is that how you read the regulation where it says the amendment does not respond to a ground of unpatentability involved in the trial? [00:10:55] Speaker 00: Does that give the PTAP the authority to look at any ground from unpatability even with respect to claims other than the one you're seeking to amend? [00:11:03] Speaker 02: We don't think so. [00:11:04] Speaker 02: We think that all we have to do is clear the references that were cited against us where this is a limited proceeding. [00:11:11] Speaker 02: There's a very limited ability given the crazy constraints in terms of page limits and everything else. [00:11:17] Speaker 02: All we can do is distinguish over the art that was cited against us and that's what we tried to do. [00:11:22] Speaker 00: Now in the patent, in the PTO's amicus, or they're an intervener, I guess, in the brief that they filed, [00:11:30] Speaker 00: it wasn't clear to me what position they were taking, but they do say, I thought at some point it seemed to me that they were saying no, what we did here was outside of the regulation, but they made the argument that the regulation is not an exhaustive list and the board has the authority to impose requirements that are not expressly set forth in the regulations. [00:11:49] Speaker 00: Do you have a position on that? [00:11:51] Speaker 02: Well, the board isn't a regulatory body, the patent office may be, but the board can't create its own rules and regulations. [00:11:56] Speaker 02: They're constrained by the existing regulations, so they shouldn't have [00:12:00] Speaker 02: impose these additional requirements. [00:12:02] Speaker 02: And the whole premise, which has been accepted by at least one panel of this court, is that you have this ability to amend, and that's why we're even applying progress reasonable interpretation. [00:12:13] Speaker 02: You can't start larding on all these other requirements that can't be met in a 15-page limit. [00:12:18] Speaker 02: And it seems that, as you're probably aware, that the patent offices realize that themselves, and they're relaxing. [00:12:23] Speaker 02: We had the unfortunate problem of being the very first IPR declared. [00:12:28] Speaker 00: But you did, I mean in terms of a kind of due process question, you did have the opportunity, I mean Microsoft raised the DRP reference in response to your motion to amend and even as I understand it at the hearing before PTAB, [00:12:41] Speaker 00: They kind of let you know they weren't going to consider it and gave you the opportunity to provide any arguments you had with respect to that, right? [00:12:50] Speaker 02: Well, that part is true, absolutely, Your Honor. [00:12:52] Speaker 02: But we shouldn't have had to do that. [00:12:54] Speaker 02: The issues were limited. [00:12:57] Speaker 02: We were trying to save the claims, or the attack brought against us. [00:13:00] Speaker 02: And we did that. [00:13:01] Speaker 02: OK, so that's 10-1. [00:13:07] Speaker 02: So some other issues that I would like to address, if the court will hear us, is some of the definitions. [00:13:15] Speaker 02: The PTAB is not applying the broadest reasonable interpretation. [00:13:20] Speaker 02: They're going for the broadest interpretation. [00:13:23] Speaker 02: The broadest reasonable interpretation does have to take into account the language in the patent itself, and that's what the board has failed to do. [00:13:29] Speaker 02: So when we look at the limitations, for example, addressing claims 6, 7, and 8 that have the limitation between two other computers. [00:13:36] Speaker 02: So if you look at claim 6, which is a lead claim in that case, and that's on page A0084, it's a system for data access in a packet switch network, and it requires [00:13:58] Speaker 00: This is the two other computer claim? [00:14:00] Speaker 02: Yes, this is the two other computer argument. [00:14:03] Speaker 00: Why was the board's construction unreasonable? [00:14:06] Speaker 02: Well, because it has to be construed in view of what is described in this patent, and it says two other computers. [00:14:12] Speaker 02: What the claim clearly refers to is the figure 11 embodiment [00:14:16] Speaker 02: The two other computers are, for example, the sender and the receiver, and the gateway hangs off in that connection. [00:14:23] Speaker 02: And to say that the cache and computer can be one of those two other computers does violence to what's disclosed. [00:14:28] Speaker 02: It even does violence to what's in the claim, because it says the gateway is between the sender and the receiver in a packet switch network. [00:14:35] Speaker 02: It says that this cache verifying computer is hanging off on a local fast network. [00:14:40] Speaker 02: So clearly, when the claim said the gateway is between the two other computers and the packet switch network, they meant the two other computers. [00:14:47] Speaker 02: And saying that the fashion computer connected in a different way was part of it, that's just not a reasonable interpretation. [00:14:53] Speaker 02: So it's a broad interpretation, but it's not the broadest reasonable interpretation, just looking at the very language of that claim. [00:15:01] Speaker 02: Further, if you look at the doctrine of claim differentiation, claim eight says that those two computers can be [00:15:07] Speaker 02: combined were in the cash and computers, integrally formed with a gateway. [00:15:11] Speaker 02: So then it disappears. [00:15:12] Speaker 02: That clearly meant when it said two other computers, those are two other computers and not some piece that may or may not be part of the gateway. [00:15:19] Speaker 02: So that's our first position that went beyond the broadest reasonable interpretation. [00:15:25] Speaker 02: The second is if you look at claims 11, 12, and 14, those are also on the appendix at 85. [00:15:33] Speaker 02: There, we're looking for... [00:15:36] Speaker 00: I have a hard time conceptually with this. [00:15:38] Speaker 00: You're saying that, I mean, you proposite an interpret claim construction, and you say that's the only reasonable interpretation? [00:15:46] Speaker 00: I don't know that at all. [00:15:49] Speaker 00: In our world, we have several things, and if we have a broadest reasonable interpretation, I assume then we have a more limited reasonable interpretation, right? [00:16:00] Speaker 02: I don't know that I'm saying that that is the broadest, what I just said was the broadest reasonable interpretation. [00:16:04] Speaker 02: What I'm saying is what the board did didn't hit the reasonable part. [00:16:08] Speaker 02: It's the broadest interpretation, but it's not reasonable to say that other includes something when you say that the two other computers are on the packet switch network and that this [00:16:17] Speaker 02: this caching computer is hanging from the gateway off a different network. [00:16:20] Speaker 02: When you say two other computers on the packet switch network, you don't mean this one down here. [00:16:24] Speaker 02: It's not what's shown in figure 11 in the accompanying text, and it's not what's described. [00:16:29] Speaker 02: So it's an interpretation, but it's not an interpretation in light of the specification. [00:16:35] Speaker 02: And we're at least as a patentee with a presumption of wording entitled to get the broadest reasonable interpretation in light of the specification. [00:16:44] Speaker 02: So the other thing that I have a chance to address is the response. [00:16:47] Speaker 02: I was talking about claims 11, 12, and 14. [00:16:50] Speaker 02: These claims specifically are directed to what is the sender? [00:16:53] Speaker 02: What is the source of data doing? [00:16:55] Speaker 02: And it talks about that it receives a response. [00:16:59] Speaker 02: You can't receive a response unless you're expecting a response. [00:17:03] Speaker 02: And the board ignores that. [00:17:05] Speaker 02: So when they apply DRP, DRP doesn't send a response. [00:17:09] Speaker 02: It gets a digest and the receiver, the one who wants the data is thinking, [00:17:13] Speaker 02: Hey, wait a minute. [00:17:14] Speaker 02: I don't have some stuff. [00:17:15] Speaker 02: So it doesn't send a response and sends a get. [00:17:18] Speaker 02: I need these things. [00:17:19] Speaker 02: As far as the sender, the source of the data understands, it doesn't know why it's getting this request. [00:17:24] Speaker 02: It just gets a request and fulfills it. [00:17:26] Speaker 02: That is not a response, at least from the viewpoint of the sender computer. [00:17:34] Speaker 02: And that's what's covered in these claims, 11, 12, and 14. [00:17:37] Speaker 02: The sender didn't get a response. [00:17:39] Speaker 02: It got a request. [00:17:41] Speaker 02: It's not responsive to anything. [00:17:43] Speaker 02: And if you read out the word response, you've read out a word of the claim, and that's not the broadest reasonable interpretation. [00:17:51] Speaker 02: And I think I've already gone into my... Yeah, you want to say that, and that's your... Yes. [00:17:58] Speaker 00: ...exclusively for purposes of arguing across the field. [00:18:02] Speaker 00: Correct. [00:18:03] Speaker 00: Thank you. [00:18:04] Speaker 02: Thank you, Your Honor. [00:18:09] Speaker 01: uh... your honor is the first question about the remand issue this court of course has remanded cases to the ITC which also have a similar statutory restriction one example is apple versus ITC in twenty thirteen what happens to that statutory eighteen months though is that completely blown out the window let's assume hypothetically that we send this case back and we tell the board to reconsider claims and it's got to consider obviousness and anticipation etcetera [00:18:37] Speaker 00: Is it your view that they start the clock running again, or that they have no clock running on their analysis? [00:18:45] Speaker 01: My guess is that there's no statutory clock on that, that it's not the trial proceeding. [00:18:51] Speaker 01: The trial proceeding, which is subject to that statutory restriction, ended with the final written decision. [00:18:58] Speaker 01: Obviously, the Patent Office will construe the regulations to require a prompt [00:19:04] Speaker 01: you know, remand action, but I don't think the statute speaks to that. [00:19:08] Speaker 01: As far as your next question about the motion to amend, the Patent Office did suggest that the regulations speaking to responding to a ground for patentability [00:19:22] Speaker 01: is what the PTAB was proceeding under. [00:19:27] Speaker 01: We don't take a position as to whether that's the most reasonable reading. [00:19:30] Speaker 00: Is that what you think they did? [00:19:31] Speaker 00: I couldn't tell, because at the end of the day, they also relied on Heidel free, suggesting that they thought they had to go away. [00:19:37] Speaker 00: They weren't otherwise included in the regulations as they stand. [00:19:41] Speaker 01: I think they argued both. [00:19:42] Speaker 01: I'm just saying that for the first one, I'm not sure that's the best reading of that regulation. [00:19:47] Speaker 01: uh... but they've got the pattern of it. [00:19:50] Speaker 00: So you think that this regulation would cover prior art that was submitted in connection with claims other than the one that they seek to amend? [00:20:00] Speaker 01: Well, our position is that the board is permitted and has to consider the claims compared to the prior art that's in the proceeding. [00:20:12] Speaker 01: We're simply saying that isn't necessarily what that specific regulation [00:20:16] Speaker 01: was speaking to but the patent office in their brief cited in red love and [00:20:21] Speaker 00: uh... sixty-two after thirteen forty nine that the book the board is not limited to the specific regulation he can hear in addition to that is that your you know i mean and they love i read and i love and it was a p site and it didn't quite go squarely into what we're talking about here that the board comes up with the regulation that says a motion to amend may be denied we are and then two examples and then they can amend it for they can uh... denied [00:20:51] Speaker 00: the motion for any number of reasons that they haven't articulated or disclosed to the public? [00:20:57] Speaker 01: Yes, that is our view and our position is it has to be that way. [00:21:01] Speaker 01: It cannot possibly be the intent of Congress or the law to force the Patent Office to grant patents they know, claims that they know are anticipated by prior art that's sitting before them because that is Proxycon's position. [00:21:16] Speaker 01: And particularly- Well, that may be right. [00:21:18] Speaker 00: But I think we're talking about two apples and oranges. [00:21:22] Speaker 00: Nobody's disputing that the board has the authority and the ability to issue regulations. [00:21:27] Speaker 00: And presumably, they could come up with regulations that they think are necessary in order to cabin these amendments. [00:21:34] Speaker 00: But here we're in a situation where they haven't arguably done that yet. [00:21:38] Speaker 01: But Your Honor, the question really is, does that regulation fairly read to mean only? [00:21:44] Speaker 01: Is it fairly read that the Patent Office [00:21:46] Speaker 01: issued a regulation saying the only time we can deny a motion to amend are these two grounds. [00:21:53] Speaker 01: And we submit that would be an unreasonable reading. [00:21:55] Speaker 01: It's certainly not the patent office's reading of its own regulation. [00:21:59] Speaker 01: It's not the board's interpretation of its regulation here. [00:22:03] Speaker 01: And it would be an unreasonable reading because of the dire consequences. [00:22:07] Speaker 00: So the consequences are only dire if the board doesn't issue regulations that cover all of the things that they need, right? [00:22:15] Speaker 01: I mean, they could. [00:22:17] Speaker 01: Well, as the regulations stand today for the court to interpret it differently than the Patent Office and to interpret it as being the exclusive grounds, it would just run counter to centuries of patent law, right? [00:22:30] Speaker 01: Because you would be forcing the Patent Office to issue claims on the prior. [00:22:35] Speaker 00: I appreciate that. [00:22:36] Speaker 00: But if you look at Idol Free, which they also cite, which is just a board opinion, which I guess has never been appealed here, because we've never looked at it. [00:22:44] Speaker 00: I'm not aware that it has. [00:22:45] Speaker 00: One of the things in Idle Free goes even farther than any construction of the regulation. [00:22:50] Speaker 00: Idle Free says any prior art that the patentee knows about. [00:22:54] Speaker 00: Don't you think that's a little broad? [00:22:56] Speaker 00: Do you think that we need that kind of broad requirement in order to get these IPRs done? [00:23:02] Speaker 01: I think that's certainly a reasonable interpretation by the board. [00:23:07] Speaker 01: Whether it should have a rule on it, I can't speak to that. [00:23:09] Speaker 01: But if that were the rule, the CFR rule by the Patent Office, that would be a good rule. [00:23:15] Speaker 01: There are other opportunities for patent owners to add claims. [00:23:20] Speaker 01: They could still do ex parte re-exam. [00:23:22] Speaker 01: They could do re-issue in the appropriate time. [00:23:24] Speaker 01: This is not a proceeding, an expedited trial proceeding, to be adding new claims with scarce review. [00:23:31] Speaker 01: They have other proceedings the Patent Office gives to patent owners to add new claims. [00:23:36] Speaker 01: So this is rightly quite limited. [00:23:38] Speaker 00: And of course... I guess for purposes of my questioning you, I'm not asking you about the policy question about whether they should or they shouldn't. [00:23:45] Speaker 00: I'm just asking you about what authority they have to do it. [00:23:49] Speaker 00: They're not limited. [00:23:50] Speaker 00: They could come up with regulations tomorrow, I presume. [00:23:54] Speaker 00: that might cover, they'll think about anything they need as a limitation and do it through regulations. [00:23:59] Speaker 00: What I'm questioning is the process by which they issue regulations and say, we may amend, we may deny it for these two reasons, and then they say, but we can do it for any reason we happen to come up with. [00:24:10] Speaker 01: Well, I wouldn't agree with that characterization. [00:24:12] Speaker 01: It obviously has to be based on the patent statute. [00:24:16] Speaker 01: It has to be 102, 103 written description, et cetera. [00:24:21] Speaker 00: And so I- Don't you think the statute, A, I mean, there's a huge section that deals with regulations, that clearly doesn't it demonstrate to you that Congress really contemplated that the direct, I mean, the director shall prescribe regulations. [00:24:36] Speaker 00: And it goes through all the various parts of the IPR proceeding and telling you what to do. [00:24:41] Speaker 00: It's out, after all, under this authority that the board did issue regulations with regard to broadest reasonable interpretation, right? [00:24:49] Speaker 00: Right. [00:24:49] Speaker 00: Doesn't that suggest that Congress clearly contemplated, they gave the Board a lot of discretion, but they contemplated that this would be done through the regulatory notice and comment process, and one in which gave public notice to parties as to what they were allowed and not allowed to do? [00:25:05] Speaker 01: Yes, but I would think with any administrative agency, they also have some leeway to go beyond the literal language of the regulation, particularly as here, the regulation does not say only. [00:25:15] Speaker 01: It did not say these are the only grounds. [00:25:17] Speaker 01: And then certainly from a due process in this case, Your Honor noted, Idle Free came out before their amended motion to amend. [00:25:26] Speaker 01: Our initial petition mapped DRP to six of the issued claims, and those issued claims were quite close to claim one from which the amended claim was amended. [00:25:37] Speaker 01: And then we mapped these claims 35 and 36, the amended claims, the DRP in our response, as Your Honor noted, [00:25:45] Speaker 01: and Judge Giannetti invited the patent owner to respond to that, and you have an hour argument before the board. [00:25:53] Speaker 01: There was a lot of due process here. [00:25:56] Speaker 01: In terms of, briefly, in terms, if I may move on to the two... Yes, please. [00:26:00] Speaker 00: I apologize for taking so much of your time. [00:26:02] Speaker 01: In terms of the two other computers called point and claim six, [00:26:07] Speaker 01: Yes, Figure 11 is certainly in the patent, but this is not a picture claim to Figure 11. [00:26:14] Speaker 01: My friend misspoke when he said that Claim 6 referred to sender and receiver. [00:26:20] Speaker 01: Claim 6 does not refer to sender and receiver. [00:26:23] Speaker 01: The board's broadest interpretation of Claim 6 does not rule out Figure 11. [00:26:28] Speaker 01: It reads on Figure 11. [00:26:30] Speaker 01: It's simply not limited to figure 11. [00:26:33] Speaker 01: It's not a picture claim. [00:26:35] Speaker 01: Patent owner, if they wanted a picture claim to figure 11, at the very least, they needed to recite sender, receiver, gateway, caching computer, and make sure that those were spelled out as being mutually exclusive devices, and they did not do that there. [00:26:50] Speaker 01: And then finally, on response signal on claims 11, 12, and 14, again, [00:26:57] Speaker 01: The reading and things of the claim. [00:26:58] Speaker 01: The claim says response signal. [00:27:00] Speaker 01: It does not say an inquiry from the center, sender. [00:27:04] Speaker 01: Claim 11 says the sender transmits data, not an inquiry. [00:27:07] Speaker 01: It then says response signal, not an answer. [00:27:11] Speaker 01: Not all responses are answers to inquiry. [00:27:15] Speaker 01: A sneeze is not an inquiry. [00:27:17] Speaker 00: Bless you is a response. [00:27:27] Speaker 02: Two points about the two other computers. [00:27:31] Speaker 02: Whether it's sender is one of those other computers and receiver, that wasn't my point. [00:27:36] Speaker 02: My point was that whatever those other computers are, they have to be on that packet switch network. [00:27:40] Speaker 02: It's completely unreasonable to say that that caching computer hanging off the fast local network is one of those two other computers. [00:27:48] Speaker 02: So I didn't mean, and if that was taken, I apologize, that the other computers had to be the sender and receiver. [00:27:53] Speaker 02: Or at my point, a caching computer can't be one of those other computers. [00:27:57] Speaker 02: The second point, the response, the pattern, if you're writing context, requires that from the standpoint of the computer with the data who's sending it out, it's waiting for a response. [00:28:12] Speaker 02: That's what that section says. [00:28:14] Speaker 02: And if it gets a response, it takes a further action. [00:28:17] Speaker 02: One of the possible responses discussed in this application, or this pattern rather, is that the response could be nothing. [00:28:23] Speaker 02: and nothing is regarded as a response. [00:28:25] Speaker 02: If you get nothing, what do you do? [00:28:27] Speaker 02: Well, you do what you were waiting to do. [00:28:29] Speaker 02: You were waiting for a response. [00:28:30] Speaker 02: If you didn't get it, you send the data. [00:28:32] Speaker 02: So response means what you get back is something responsible for what you've already sent, at least in the context of computers that can only send and receive. [00:28:43] Speaker 02: So those are our points for those reasons. [00:28:46] Speaker 02: And the reasons I discussed earlier, we think that the claimants. [00:28:54] Speaker 02: to make sure that claim 24 is not shown to be anticipated by the IR that we have shown that we're entitled to 6, 7, and 9 because the two other computer limitations is not in the priority if it's properly construed. [00:29:07] Speaker 02: We are entitled to claims 11, 12, and 14 because there's no response in the prior. [00:29:13] Speaker 02: At least response should properly be construed in those claims. [00:29:16] Speaker 02: And that the determination, which we didn't get a chance to address, [00:29:19] Speaker 02: uh... one three twenty-two twenty-three because of the definition of receiver receiver have to be but you know that the client and all the time we have a lot of it yeah