[00:00:29] Speaker 00: A council available for the next case, which is 15-20, 12-12, straight path, IP Group Inc. [00:00:39] Speaker 00: versus SIPNET EU. [00:01:17] Speaker 00: Okay, Mr. Widarsky. [00:01:19] Speaker 02: Thank you. [00:01:19] Speaker 02: Good morning. [00:01:19] Speaker 02: James Widarsky for the Appellant Straight Path IP Group, Incorporated. [00:01:24] Speaker 02: May it please the court, regardless of how this court construes process, all of the challenged claims require the ability to determine that that process is connected to the network. [00:01:35] Speaker 02: The prior art here expressly admit... Well, they do that. [00:01:39] Speaker 00: The specification makes clear they do that by checking a database. [00:01:43] Speaker 00: which may be somewhat out of date, right? [00:01:46] Speaker 00: It talks about it to be relatively current. [00:01:49] Speaker 02: That's incorrect, Your Honor. [00:01:51] Speaker 00: What's incorrect about it? [00:01:53] Speaker 02: That disclosure in Column 5, Your Honor, is not even claimed by Claim 1, for example, which is representative of the subject matter. [00:01:58] Speaker 02: The real disclosure is in Figure 8, and it's supporting disclosure in Column 10, and very specifically in Column 6, Lines 1 through 16. [00:02:06] Speaker 00: Do you agree then you lose if the description in Column 5 is a description of this claim? [00:02:12] Speaker 02: No, it is part of the primary protocol embodiment, Your Honor, but it is time stamping is not expressly claimed in claim one, for example. [00:02:19] Speaker 02: It's something that may be, as the language of the disclosure says, part of the disclosure, but it's not required. [00:02:25] Speaker 02: And if it is part of the system, no one disputes that time stamping will provide some evidence of whether something is online or not offline. [00:02:32] Speaker 02: But what the server and the program, the computer program are required to do is disclosed in column 10 and column 6. [00:02:39] Speaker 02: Most specifically, your honor, I don't dispute that in column five, for example. [00:02:44] Speaker 02: It describes that both the first processing unit and the second processing unit established themselves as going active online by connecting to the internet and having their IP address processed by the database and established as active and online. [00:02:59] Speaker 02: But critical to the 704 system as opposed to the prior art is a disclosure in column six which says when the process [00:03:09] Speaker 02: goes offline, it has to communicate that to the server. [00:03:13] Speaker 02: The server is obliged and required to update that status by either deleting that information of that process or flagging it offline and then in lines one through three of column six. [00:03:24] Speaker 00: I'm having difficulty understanding what you're saying. [00:03:27] Speaker 00: There's this description in column five of a database and when you log on [00:03:33] Speaker 00: It's reflected in the database. [00:03:34] Speaker 00: When you log off, it's reflected in the database. [00:03:37] Speaker 00: And by checking the database for relatively current information as to whether the processor or whatever it is is available, right? [00:03:50] Speaker 02: That's absolutely true if that becomes part of the system, Your Honor. [00:03:53] Speaker 00: All right. [00:03:53] Speaker 00: But are you saying that's not what's meant in the claims here? [00:04:01] Speaker 00: when it uses language about currently available or whatever it is? [00:04:04] Speaker 02: Is connected, Your Honor. [00:04:06] Speaker 02: Is connected. [00:04:06] Speaker 02: Yes, that is what I'm saying. [00:04:07] Speaker 02: Is the actual language employed by the patentee to describe what temporal requirement exists in the claim? [00:04:14] Speaker 02: And column 6 teaches us what exactly that means. [00:04:17] Speaker 02: It means that when, again, Your Honor, when the process goes offline, there has to be a mechanism. [00:04:25] Speaker 02: And the example used in the disclosure is to provide a data packet, essentially a message from that process, [00:04:30] Speaker 02: to the connection server saying, I'm offline. [00:04:33] Speaker 02: And then the disclosure teaches us what this is. [00:04:36] Speaker 02: Where do I find this in column six? [00:04:38] Speaker 02: Column six lines one through 16, your honor, and specifically. [00:04:44] Speaker 02: Let me just pull it up here. [00:04:48] Speaker 02: Line six through eight. [00:04:49] Speaker 02: Line six, you could even go to line 15, your honor. [00:04:52] Speaker 02: When a user logs off or goes offline from the internet. [00:04:55] Speaker 02: So log off as graceful goes off is not graceful. [00:04:58] Speaker 02: The connection server updates the status of the user in the database. [00:05:01] Speaker 02: For example, by removing the user's information or by flagging the user as being offline. [00:05:06] Speaker 00: Well, how is that inconsistent with the description column five? [00:05:10] Speaker 00: It's again determining availability by looking at the database. [00:05:14] Speaker 02: Because it's doing it real time now. [00:05:15] Speaker 02: Remember, this patent is directed at facilitating real time communication. [00:05:19] Speaker 02: When the first process wants to communicate point to point, it's asking the server to confirm that that party is online, [00:05:26] Speaker 02: and because dynamic addresses can be assigned and reassigned, it's to confirm that it's online at that moment and it's online at that address. [00:05:34] Speaker 02: So you see the database at that moment has to be able to make that binary decision, your honor, because if you look at lines one through three of column six, it says if the callee is not online, when the connection server determines the callee status, then the servers oblige to send an offline signal or message to the first processing unit. [00:05:53] Speaker 02: It's not about whether at some earlier moment in time that second callee process was online or at any other time other than when the first process says to the server through the program code, I want to communicate with my peer. [00:06:06] Speaker 02: I'm Skype on computer one. [00:06:07] Speaker 02: I want to communicate with someone using the Skype process on computer two. [00:06:11] Speaker 02: Please tell me if they're online. [00:06:12] Speaker 02: And if so, give me the presently assigned dynamic address. [00:06:15] Speaker 02: So that binary decision has to be made by the server then because it takes [00:06:20] Speaker 02: the connection server under the patent is required to do a different thing based upon its decision and determination. [00:06:26] Speaker 00: So let me just ask you, if we were to disagree with you on that and say that column five in the relatively current language describes what the scope of the claims is here and that the [00:06:43] Speaker 00: PTO got the claim construction correct. [00:06:47] Speaker 00: I know you disagree with that. [00:06:48] Speaker 00: I'm following. [00:06:49] Speaker 00: But assume that. [00:06:50] Speaker 00: Do you agree that that is shown in the prior art, particularly the WINS prior art? [00:06:57] Speaker 02: No, Your Honor, because what the prior art at Appendix Site 1308, for example, expressly tells us is it does not query the status of anything. [00:07:09] Speaker 02: What it tells us is that... It does establish a database. [00:07:14] Speaker 00: Right? [00:07:14] Speaker 00: It does. [00:07:15] Speaker 00: And the database shows availability, right? [00:07:22] Speaker 00: It's somewhat out of date, but it shows availability, right? [00:07:27] Speaker 00: No, Your Honor. [00:07:27] Speaker 02: We're not available. [00:07:28] Speaker 02: No. [00:07:28] Speaker 02: It does not, Your Honor. [00:07:29] Speaker 02: What it does, Your Honor, at page 51 of the WINS disclosure, for example, which is the implementation of the NetBIOS name service, it explains to you that it only has two aspects. [00:07:41] Speaker 02: It does registration and resolution. [00:07:43] Speaker 02: All it cares about is allowing the resources on the network, a computer, a node, to claim a name. [00:07:51] Speaker 02: Say, I want to be Bob. [00:07:53] Speaker 02: Can I be Bob? [00:07:54] Speaker 02: And determine whether there's a conflict. [00:07:55] Speaker 02: That's the registration. [00:07:56] Speaker 02: That's what gets populated in the database. [00:07:58] Speaker 02: And then it resolves what IP address is to be associated with that. [00:08:04] Speaker 02: That mapping information is put into that database. [00:08:07] Speaker 02: All that ever does is store that information. [00:08:10] Speaker 02: And 1308 is critical, Your Honor, because it says, [00:08:13] Speaker 02: A query in that system is a query that says, please return that last name to IP address mapping. [00:08:20] Speaker 02: That's all it does. [00:08:22] Speaker 02: That's what 1308 tells us. [00:08:23] Speaker 02: You make the query. [00:08:24] Speaker 00: 1310 at the top talks about whether WINS is enabled or not. [00:08:31] Speaker 00: When a computer is shut down properly, it releases its name to the WINS server, which marks the related database as released. [00:08:38] Speaker 00: How is that different from what's described here in column five? [00:08:42] Speaker 02: It's totally different, Your Honor, because in this system, there's absolutely no correlation in the release mechanism and whether you're actually online. [00:08:48] Speaker 02: And again, the 704 patent is about determining... If it's released, you're not online, right? [00:08:54] Speaker 00: Excuse me, Your Honor? [00:08:54] Speaker 00: If it's released, you're not online, right? [00:08:56] Speaker 02: No, you can release and be online, Your Honor. [00:09:00] Speaker 02: That's actually a great question. [00:09:02] Speaker 00: Well, it says if it's shut down properly, it's released. [00:09:04] Speaker 00: If it's shut down properly, it's not online, right? [00:09:08] Speaker 02: That's not correct, Your Honor. [00:09:09] Speaker 02: I just want to get the proper site for you. [00:09:12] Speaker 02: The references describe two circumstances which demonstrate my point. [00:09:16] Speaker 02: First, the NetBio system and the WINS implementation can be online and have released, or set the release flag, have released that name, and that's appendix site 1115. [00:09:28] Speaker 02: Similar, the NetPrior... That's the language that I read you. [00:09:32] Speaker 00: I don't understand. [00:09:33] Speaker 00: It says whenever a computer is shut down properly, it releases its name to the WINS server, which marks the related database. [00:09:40] Speaker 00: database entry as released. [00:09:42] Speaker 00: So if you look at the database, it shows released, it means the computer was shut down. [00:09:49] Speaker 02: Your Honor, first of all, two points. [00:09:52] Speaker 02: It doesn't do that immediately. [00:09:54] Speaker 02: As the references show, it can be up to 400 hours of delay before it does that, because the system doesn't care about online status. [00:10:02] Speaker 02: So there's no immediacy to that. [00:10:05] Speaker 02: I do can see that ultimately the database will reflect the effort to release the name. [00:10:10] Speaker 02: But the point I'm trying to make is the point that 1308 makes expressly. [00:10:14] Speaker 02: It says, I'll give you the valid mapping, but that cannot be relied upon to tell you whether or not the device associated with that mapping information is currently online. [00:10:24] Speaker 02: It expressly tells you that because it can't do it. [00:10:26] Speaker 02: The system doesn't do it. [00:10:27] Speaker 02: And the point I was making by revering to- That's not the question I was asking. [00:10:31] Speaker 00: I was saying if we accept the claim construction of the board, [00:10:35] Speaker 00: and the notion that the scope of the claim is described in column five in a relatively current, I'm asking you, isn't that shown in wins in this language? [00:10:50] Speaker 00: I understand your argument that it has to be real time. [00:10:53] Speaker 00: It has to be current. [00:10:54] Speaker 00: And that the wind system is not real time, right? [00:10:58] Speaker 00: And there doesn't seem to be any dispute about that. [00:11:00] Speaker 00: But if the scope of the claim is defined by column five, [00:11:04] Speaker 00: Why isn't that shown in wins? [00:11:08] Speaker 02: Because, Your Honor, it's not disclosing anything about the process. [00:11:15] Speaker 02: It never does. [00:11:16] Speaker 02: So the NetBio system, there is nothing in there. [00:11:18] Speaker 02: Again, if I have Skype on computer one, I have Skype on computer two, that's the process that wants to be the caller and the callee. [00:11:25] Speaker 02: Nothing about that disclosure in COM5 would ever tell you, amongst the multitude of processes that are running on either of those nodes, [00:11:32] Speaker 02: whether that process ever logged on or ever logged off. [00:11:35] Speaker 02: And that's the critical distinction, Your Honor. [00:11:37] Speaker 02: So ultimately, even if it were otherwise, again, you would still have to reverse the error in the remaining claim construction because it's not contested anywhere that the prior system can do this necessary determination of present status. [00:11:55] Speaker 01: Hey, can I just ask you, do you make the argument in your blue brief that accepting the board's construction of the claim phrase is connected to the network that the board was wrong about anticipation and obviousness? [00:12:11] Speaker 01: Put aside the whole process business. [00:12:14] Speaker 01: I don't remember that argument. [00:12:17] Speaker 01: I thought your entire argument about that claim phrase was that the board got the claim construction wrong and under the correct one. [00:12:25] Speaker 01: You can't find anticipation, or at least that has to be reconsidered under the right claim construction. [00:12:31] Speaker 02: There is an argument. [00:12:32] Speaker 01: Right. [00:12:33] Speaker 01: But do you make the argument that if the board is right, that is doesn't really mean is, it could mean whatever is still in the registration database, that there's no anticipation? [00:12:51] Speaker 02: Yes, Your Honor. [00:12:52] Speaker 02: Again, because then- Where do you make that argument, if you're free? [00:12:55] Speaker 02: Well, Your Honor, I make it with respect to the argument process. [00:12:58] Speaker 02: Oh, OK. [00:12:59] Speaker 02: I wanted to put that aside. [00:13:00] Speaker 02: OK. [00:13:01] Speaker 00: I appreciate that, Your Honor. [00:13:06] Speaker 00: So you do not argue that you win under the board's claim construction? [00:13:14] Speaker 02: Your Honor, the board never can- Not to answer my question. [00:13:17] Speaker 02: I say that you're still required to reverse. [00:13:19] Speaker 02: Put your process aside. [00:13:20] Speaker 00: Yes. [00:13:21] Speaker 00: You do not argue that you would win under the board's claim construction. [00:13:25] Speaker 02: Of connected to the computer network, Your Honor? [00:13:28] Speaker 00: Yeah. [00:13:28] Speaker 00: I would win under that, Your Honor. [00:13:31] Speaker 00: But you just admitted you didn't make that argument in your brief. [00:13:36] Speaker 02: I appreciate that, Your Honor. [00:13:37] Speaker 02: I mean, the issue is, part of the problem, if I could just take the lens out, I ultimately will concede that point to you to get to really what the heart of it is. [00:13:45] Speaker 02: Again, we're accepting the invitation provided by SIPPNET below, which the board, you know, [00:13:51] Speaker 02: regrettably accepted where we're only talking about three lines of disclosure and the specification. [00:13:56] Speaker 02: The claim language itself, which the clear guidance of this court has directed us to, tells us what the proper construction should be. [00:14:03] Speaker 01: But that's your claim construction argument and that's one argument and there's a lot that you have said in support of it and criticism of the role of column five. [00:14:19] Speaker 01: Just to be clear, I don't think in your blue brief you ever said, putting aside the process argument, accepting the board's construction of the claim phrase is connected to the computer network, that nevertheless, the board's conclusion of invalidity has to be reversed. [00:14:41] Speaker 02: Well, Your Honor, the answer I can give you is, [00:14:43] Speaker 02: What we noted is that the board never actually construes the term here again. [00:14:48] Speaker 02: What it does, while it doesn't communicate ever expressly what the claim construction is, it says for whatever it is... We're trying to understand what you're arguing. [00:14:57] Speaker 00: You need to be helpful to us about that. [00:14:59] Speaker 00: I appreciate that. [00:15:00] Speaker 00: We understand the claim construction argument, but we don't understand that you ever argue in the brief that under the board's claim construction, you win. [00:15:10] Speaker 00: And you're not making that argument? [00:15:11] Speaker 02: I will concede that point, Your Honor. [00:15:13] Speaker 03: OK, thank you. [00:15:16] Speaker 02: Your Honor, with the remaining time, I think I just want to give a notion of the two critical elements of the flawed claim construction process that demonstrate how it came to the reversible and erroneous construction. [00:15:27] Speaker 02: First, it decided to isolate and construe in a vacuum this connected to the computer network phrase without actually, as the patent owner had consistently urged here in an earlier 2010 re-example, [00:15:40] Speaker 02: to consider all the language of the critical second and third limitations together. [00:15:45] Speaker 02: Your honor, it does fundamental injustice to the claim construction guidance provided by this court to look at that phrase disconnected from the integral language around it, most specifically the word is, which expressly appears in the claim. [00:15:57] Speaker 02: Is must be included in a consideration of how to construe connected, and the board simply refused to do that. [00:16:05] Speaker 02: Second, your honor, what we've been talking about [00:16:07] Speaker 02: On page six of the final written decision in appendix six, the board makes clear all it does to find its claim construction is to rely upon three lines of disclosure from column five. [00:16:19] Speaker 02: Again, that's not even where it looked, but that selective and incomprehensive review of the specification and disregard for the actual claim language results in the error. [00:16:31] Speaker 02: Had it looked at column six, had it looked at figure eight and column 10, [00:16:35] Speaker 02: it would have come to a different conclusion, Your Honor. [00:16:38] Speaker 02: So what would you do? [00:16:39] Speaker 02: Mr. Wodarski, I think we're out of time here. [00:16:41] Speaker 00: Thank you, Your Honor. [00:16:41] Speaker 00: We'll give you two minutes. [00:16:43] Speaker 02: I appreciate that. [00:16:44] Speaker 02: Thank you. [00:16:51] Speaker 00: Mr. Prasad, am I pronouncing that correctly? [00:16:53] Speaker 00: Prasad. [00:16:54] Speaker 00: Correct. [00:16:55] Speaker 00: Yes, thank you. [00:16:59] Speaker 00: So we've got a claim construction issue. [00:17:04] Speaker 00: Why do you think the board was correct? [00:17:07] Speaker 04: The board's construction of the term connected to the network was correct because they followed the steps. [00:17:14] Speaker 04: They first looked at the claims, at the claim themselves, the entirety of the claim. [00:17:19] Speaker 04: They then turned to the specification. [00:17:21] Speaker 04: When you look at the claim, even if you accept my friend's argument that you need to give meaning to the word is, you still don't get their interpretation because the claims don't require, there's no actual requirement in the claim. [00:17:34] Speaker 04: that the second process is online when the first process makes its query, or that the second process is online when the first process makes its query. [00:17:42] Speaker 01: Look, explain that to me. [00:17:43] Speaker 01: I guess I keep reading the language of the claim. [00:17:46] Speaker 01: And I'm not particularly fond of conclusions about plain meaning. [00:17:54] Speaker 01: But I am struggling to find the slightest doubt in this for transmitting a query as to what [00:18:01] Speaker 01: whether the second process is connected to the computer work. [00:18:05] Speaker 01: I just do not see how that means anything other than asking the question, are you now, when you get this query, connected to the network? [00:18:15] Speaker 04: Yes. [00:18:15] Speaker 04: So you're talking about claim one? [00:18:17] Speaker 04: Yes. [00:18:18] Speaker 04: So claim one, it's a program product claim. [00:18:20] Speaker 04: And in the preamble, it recites the first process, the executing. [00:18:25] Speaker 04: And then where it talks about connected to the network, [00:18:30] Speaker 04: It's program code for transmitting to the server a query as to whether the second process is connected to the network. [00:18:35] Speaker 01: Right, you ask the server, is this the callee? [00:18:39] Speaker 04: Yes. [00:18:40] Speaker 04: Right then and there connected to the network. [00:18:43] Speaker 04: And so you go to the next step, which is what the board did. [00:18:46] Speaker 04: You look at what connected to the network means in the context of the specification. [00:18:50] Speaker 01: Right, and so you looked at, and it cited one thing. [00:18:52] Speaker 01: It didn't even cite what I thought was actually the most interesting thing of column five. [00:18:57] Speaker 01: It cited the thing that says, [00:19:00] Speaker 01: when a device connects to the server, the server puts in its database, you're active. [00:19:07] Speaker 04: Yes. [00:19:08] Speaker 01: That doesn't mean that an hour from now you're active. [00:19:11] Speaker 01: So what? [00:19:12] Speaker 01: And that's the conclusion the board came to. [00:19:15] Speaker 01: Right. [00:19:15] Speaker 01: And that's what my question, so what, goes to. [00:19:19] Speaker 01: The fact that the spec says when somebody registers with the server, they are at that moment active and online doesn't tell me [00:19:28] Speaker 01: anything about whether an hour or two days or three days from now, they're still active and online. [00:19:34] Speaker 01: The database would have to be kept up to date by doing what's in column six. [00:19:39] Speaker 04: It's kept up to date by doing what's in column six, but that's imperfect. [00:19:43] Speaker 04: But again, what the claim requires is merely that you transmit a query as to whether you're active or not. [00:19:51] Speaker 04: The straight path construction is that at that time when that query is transmitted and then when it's received, [00:19:58] Speaker 04: the first process is also active. [00:20:01] Speaker 04: They require an absolute requirement that the first process is online when the second process is queried and when it gets its result back. [00:20:09] Speaker 04: Claim one doesn't require that. [00:20:11] Speaker 01: I'm sorry. [00:20:12] Speaker 01: I thought that the dispute here and what the board found or concluded in its claim construction was that this particular language, what is that, the third [00:20:24] Speaker 01: elements of this claim, program code for transmitting to the server query as to whether the second process, the callee is connected to the computer network, doesn't actually require that the information that comes back say whether the callee is connected to the computer network, only that it is, with air quotes, connected to the network in the sense that the server [00:20:52] Speaker 01: has in its database a line that says they're connected, even if that line is currently false. [00:20:58] Speaker 04: That's correct, because that's what the patent describes. [00:21:00] Speaker 04: When the patent describes, when they use in the claim terms connected to the computer network, the patent doesn't describe anything other than that the registration be in the database. [00:21:10] Speaker 04: Whether or not, in fact, it's online or not, it simply requires that the registration be in the database. [00:21:16] Speaker 01: But see, I just am not seeing that in column five. [00:21:20] Speaker 01: It describes, of course, [00:21:22] Speaker 01: a connection server that makes a database when somebody registers. [00:21:26] Speaker 01: Yes. [00:21:27] Speaker 01: And that registration means right then and there, they're active and online. [00:21:30] Speaker 01: Correct. [00:21:31] Speaker 01: But then that doesn't tell you what the answer is to the question asked a day later. [00:21:36] Speaker 01: Yes. [00:21:39] Speaker 01: Are you active and online? [00:21:40] Speaker 01: That could be out of date. [00:21:42] Speaker 04: That's right. [00:21:43] Speaker 04: And that's exactly... So you're raising a point which claim one allows for, which is that these queries can be made at different points in time. [00:21:51] Speaker 04: And in fact, when the connection server responds back that this process is connected, it may not actually be. [00:22:01] Speaker 04: It may have disconnected a while back. [00:22:03] Speaker 01: So it seems to me that we have claim language that is extraordinarily plain. [00:22:09] Speaker 01: And one would need something comparably plain in the spec to say, no, no, we don't really mean that. [00:22:16] Speaker 01: And I'm struggling to find anything like that in column 5, which merely says, [00:22:21] Speaker 01: when a device that eventually becomes a callee signs up with the server, that the server says, okay, right then and there you're active and online. [00:22:32] Speaker 01: And then later there's language which the board did not rely on about a query. [00:22:38] Speaker 01: The query is made by finding the, searches the database to determine whether the callee is logged in [00:22:50] Speaker 01: by finding any stored information corresponding to the colleague's email address. [00:22:55] Speaker 01: Now, that's not something that the board relied on. [00:22:57] Speaker 01: That seemed to me to be pointing a little bit more in the direction that the board eventually ended up. [00:23:04] Speaker 01: But even that doesn't say that the answer simply by asking has to represent the information required by the claim. [00:23:13] Speaker 01: And it tells you in the next paragraph at the top of column six how the answer would actually represent that. [00:23:19] Speaker 01: Namely, devices check in and out. [00:23:24] Speaker 01: So the registry of the server is, in fact, current. [00:23:29] Speaker 00: But that doesn't mean... Does Column 6, in fact, talk about current information, or is it also talking about checking a database as a surrogate for whether it's currently connected? [00:23:40] Speaker 04: It's merely an explanation for the structures that are described earlier. [00:23:43] Speaker 04: In Column 5? [00:23:45] Speaker 04: In Column 5. [00:23:46] Speaker 04: What the patent discloses is the connection server, [00:23:49] Speaker 04: A process will register with that connection server, and it will give its email address, and there will be a time stamp. [00:23:56] Speaker 04: And that will remain in there until it either expires or it's explicitly deregistered. [00:24:03] Speaker 04: And so that's what Column 6 is describing, is the operation of those structures. [00:24:09] Speaker 01: Right, but when Column 6 says when the callee is not online with the connection server, [00:24:14] Speaker 01: When the connection server determines a callee status, the connection server sends an offline signal or message. [00:24:20] Speaker 01: When a user logs off or goes offline from the internet, the connection server updates the status of the user in the database. [00:24:27] Speaker 01: If that in fact happens, then the connection server's database, checked in column five, will in fact communicate the necessary information. [00:24:36] Speaker 01: But if that doesn't happen, it won't. [00:24:38] Speaker 01: That's absolutely correct, and it won't necessarily happen. [00:24:42] Speaker 01: Because again... But this claim, it seems to me by its plain language, contemplates that that's happening if the connection server answer is going to do what the claim language requires. [00:24:57] Speaker 01: Supply and answer to the query whether the second process is connected to the computer network. [00:25:03] Speaker 04: That's correct, but it doesn't... Even that interpretation, that doesn't meet what straight path now argues. [00:25:12] Speaker 04: That meets the board's construction. [00:25:15] Speaker 04: And in fact, the board's construction does not preclude the interpretation that you're giving it, the understanding that you're giving it. [00:25:23] Speaker 01: No, it just says that its interpretation wants to cover queries about current status in which the information that comes back is actually not about current status. [00:25:38] Speaker 01: And that seems to me 180 degrees up [00:25:42] Speaker 04: The board's interpretation actually gives it a bit more latitude. [00:25:46] Speaker 04: The board's interpretation simply requires that it was registered. [00:25:53] Speaker 04: And that's entirely consistent with the patent. [00:25:55] Speaker 04: The board's construction doesn't require that it necessarily be online at the time of the query. [00:26:02] Speaker 04: It simply requires that it had been registered. [00:26:05] Speaker 00: That's it. [00:26:07] Speaker 00: But if I understand correctly, the issue here is whether it is connected means [00:26:11] Speaker 00: current information that's always accurate, or whether it means checking a database as a surrogate, which may be sometimes inaccurate, but is, quote, relatively current, right? [00:26:25] Speaker 00: So the question is, when it says is connected, is it talking about real-time information, or is it talking about a database? [00:26:33] Speaker 00: And if I read column six correctly, column six is also talking about checking a database. [00:26:39] Speaker 04: That's correct. [00:26:40] Speaker 04: Column six is merely an extension of column five. [00:26:43] Speaker 04: It's not describing something new. [00:26:46] Speaker 04: It's merely explaining the operation. [00:26:49] Speaker 01: What I take it to be is describing. [00:26:52] Speaker 01: What you say is absolutely right. [00:26:54] Speaker 01: It's continuing a description of a database. [00:26:56] Speaker 01: And then it's adding something not yet described in column five. [00:27:01] Speaker 01: And what it's adding is the mechanism by which the database is kept up to date. [00:27:06] Speaker 01: Namely, devices communicate when they drop off. [00:27:10] Speaker 01: Yes, so in column five they... But the board's construction, I think we agree, doesn't require that. [00:27:16] Speaker 01: The board's construction covers the situation when you check a database in which the information that is going to then be sent back does not accurately represent whether that device is online. [00:27:30] Speaker 01: Just that it once was. [00:27:32] Speaker 04: Or that it may currently be. [00:27:34] Speaker 04: The board's construction... It could be there once. [00:27:35] Speaker 04: That's why I said it doesn't have to. [00:27:37] Speaker 04: It doesn't have to, that's correct. [00:27:38] Speaker 04: And that's the reality of the 704 patent. [00:27:41] Speaker 04: Claim six, column six is not describing anything that's not already understood by one skill in the yard according to column five. [00:27:50] Speaker 04: It's not describing any new mechanism by which you can ensure that there is actually the answer returned back is absolutely positive. [00:27:59] Speaker 01: Am I right? [00:28:00] Speaker 01: In the prosecution history, in the re-exam, this very point was [00:28:07] Speaker 01: expressed by the patentee as a ground of distinction? [00:28:14] Speaker 01: The examiner or the re-examiner, whatever one calls a person in that status, rejected the claims and they came back and said, as discussed above with respect to the recitation of processes having online status net bios doesn't teach that an active name is synonymous [00:28:32] Speaker 01: with whether the second process is connected to the network. [00:28:35] Speaker 01: An active name simply refers to a name that has been registered and that has not yet been deregistered, independent of whether the associated computer is or is not connected to the network. [00:28:44] Speaker 01: Claim one is patentable over the combination, because we don't do that. [00:28:47] Speaker 01: We require more. [00:28:48] Speaker 04: Well, so that was based on an incorrect determination of the teaching of net bios, which the board here actually made findings that net bios actually does disclose registration of a process. [00:29:01] Speaker 01: I'm not talking about process. [00:29:03] Speaker 01: I thought it was quite clear that the board never answered the question, does NetBIOS disclose what their claim construction of the isConnected language would require? [00:29:16] Speaker 01: That simply hasn't been addressed. [00:29:18] Speaker 04: That was addressed. [00:29:20] Speaker 04: I'm sorry, do you mean under Seripath's current construction? [00:29:23] Speaker 04: Yes. [00:29:24] Speaker 04: NetBIOS and WINS both disclosed that. [00:29:26] Speaker 04: Under NetBIOS's current construction... But the board didn't find that. [00:29:29] Speaker 04: No, no. [00:29:31] Speaker 00: NetBIOS and WINS don't disclose what their construction is, because it's always checking a database, which may be slightly out of date, right? [00:29:42] Speaker 00: That's also NetBIOS and WINS. [00:29:44] Speaker 00: Yeah, that's what I'm saying. [00:29:46] Speaker 00: So under their construction, if it's correct, the prior art doesn't show that. [00:29:53] Speaker 04: Well, so under their construction, well, not necessarily, because under their construction, what you have as a system [00:30:01] Speaker 04: that when it's checked, that the answer is accurate. [00:30:06] Speaker 04: And net bios and winds can both do that. [00:30:08] Speaker 04: There are times that when a node checks, that the answer they get back is accurate. [00:30:13] Speaker 00: Well, of course, most of the time it's accurate. [00:30:16] Speaker 00: It may be inaccurate sometimes. [00:30:19] Speaker 00: But what column 5 says is it's relatively current, which leaves some room for inaccuracy. [00:30:26] Speaker 04: Correct. [00:30:27] Speaker 04: Correct. [00:30:28] Speaker 00: Yes. [00:30:34] Speaker 04: Anything further? [00:30:36] Speaker 04: OK. [00:30:38] Speaker 04: So it looks like I've got another minute or so. [00:30:41] Speaker 04: I didn't hear any discussion in my friend's opening argument about the term process. [00:30:49] Speaker 04: There's no dispute there. [00:30:50] Speaker 04: There's substantial evidence under the claim construction advocated by Straight Path to affirm the decision on that. [00:30:57] Speaker 04: Also, on the connected to argument, [00:31:00] Speaker 04: That language that they're seeking construction of, it's only in three of the independent claims, 133 and 138. [00:31:06] Speaker 04: It doesn't pertain to the other three independent claims. [00:31:12] Speaker 00: Okay. [00:31:13] Speaker 00: Thank you. [00:31:14] Speaker 00: Thank you. [00:31:14] Speaker 00: Thank you, Mr. Frazier. [00:31:19] Speaker 00: Mr. Widorsky, you've got two minutes here. [00:31:21] Speaker 04: Thank you. [00:31:33] Speaker 02: I'll try and make two quick points and then sum up, Your Honor. [00:31:36] Speaker 02: First, following on our earlier discussion, Judge Dyk, and the conversations you just had with the opposing counsel, this notion of relatively current, it's important to note that it's not in the board's construction. [00:31:48] Speaker 02: The board's construction is that once a process goes online at registration or login, it is active and online, and nothing else is ever required. [00:31:58] Speaker 02: That's it. [00:31:59] Speaker 02: So under the board's construction, simply logging on and being processed by the database of the server satisfies the claim. [00:32:06] Speaker 02: There's no concept of relatively recent in the board's construction. [00:32:09] Speaker 02: And similarly, Your Honor, the term relatively current never appears in the claim language. [00:32:14] Speaker 02: So what that leads us to is the actual question you got to. [00:32:17] Speaker 02: Both systems require us to have and require us to consider the query of a database. [00:32:25] Speaker 02: The difference is that database in the name service of NetBIOS and the implementation of WINS doesn't provide any information about online. [00:32:34] Speaker 02: You could be online and the database could think you're off. [00:32:39] Speaker 02: There's no correlation between the two. [00:32:41] Speaker 02: The difference between ours, and that's why column 6 is so important, [00:32:45] Speaker 02: is that our database is obliged to keep updated so it can actually answer that question. [00:32:50] Speaker 02: But again, counsel goes just to an embodiment as disclosed in specification. [00:32:55] Speaker 02: No discussion of the claim language. [00:32:58] Speaker 02: And I want to just pick up on what Judge Toronto said about the extraordinary plain and ordinary meaning of is is actually used in the claim. [00:33:06] Speaker 02: That's exactly it. [00:33:07] Speaker 02: To the earlier point, once you have ascertained the plain and ordinary meaning of is, [00:33:12] Speaker 02: The only thing left to do is look to the specification to see if there was a special definition otherwise, or there was expressed disavowed by the patentee that is, should be construed in its plain and ordinary way. [00:33:23] Speaker 02: No one argues that here. [00:33:24] Speaker 02: That isn't the case. [00:33:26] Speaker 02: The plain and ordinary language applies. [00:33:28] Speaker 02: So in sum, what we're asking you to do on appeal. [00:33:30] Speaker 00: But you don't dispute, right, that even under your interpretation, the question of current connection is determined by checking a database, right? [00:33:39] Speaker 02: Checking the connection server claimed by claim one, yes. [00:33:43] Speaker 00: Database, checking a database. [00:33:44] Speaker 02: That's right, your honor. [00:33:45] Speaker 02: But the database, that begs the question of what the database, what information to add. [00:33:49] Speaker 03: Is the difference in your invention that the database has to be updated when somebody logs off? [00:33:57] Speaker 02: Absolutely. [00:33:58] Speaker 02: And I say that for two simple reasons. [00:34:00] Speaker 02: One is requires it, and that's the actual language used by the patentee. [00:34:04] Speaker 02: And column six and column 10, including figure eight, tell you that [00:34:09] Speaker 02: That's the teaching of the disclosure as well. [00:34:11] Speaker 02: So in essence, your honor. [00:34:13] Speaker 00: Under your claim construction, the database has to be always accurate. [00:34:18] Speaker 00: It cannot be ever inaccurate. [00:34:20] Speaker 00: Fair? [00:34:21] Speaker 02: Again, accurate is not the term. [00:34:24] Speaker 02: What it has to do is we know two things. [00:34:26] Speaker 02: Accurate as to the online status. [00:34:28] Speaker 02: Yeah. [00:34:29] Speaker 02: It has to be accurate for the purpose of the invention. [00:34:31] Speaker 02: Always accurate. [00:34:33] Speaker 02: Within the meaning. [00:34:33] Speaker 02: It has to be able to facilitate the real-time communication. [00:34:36] Speaker 02: What they've tried to impose upon that is an instantaneous. [00:34:39] Speaker 02: Please try to respond to my question. [00:34:43] Speaker 00: Under column five and the prior arc, the database may sometimes be inaccurate because something happened which wasn't reflected in the database. [00:34:53] Speaker 00: Your view is the database must always be accurate, and that's the difference between you and the prior arc, correct? [00:35:02] Speaker 02: That is correct, Your Honor. [00:35:03] Speaker 02: We must be accurate. [00:35:04] Speaker 02: You have to be able to say present or current status. [00:35:07] Speaker 02: And at the time of the query and the query could happen, who knows when. [00:35:11] Speaker 02: That's all the system cares about. [00:35:12] Speaker 02: The process one wants to talk to its peer, process two. [00:35:15] Speaker 02: So in some, Your Honor, they strip the word is from the claim language. [00:35:18] Speaker 02: We're just asking you to put it back, give it its plain and ordinary meaning, and that requires reversal. [00:35:23] Speaker 02: And so we would ask, Your Honor, that you reverse the final written decision and its conclusion. [00:35:28] Speaker 00: Thank you very much, Your Honor.