[00:00:00] Speaker 01:
Networks and Mr. Summerfield.

[00:00:08] Speaker 00:
May it please the Court.

[00:00:10] Speaker 00:
The sole question on appeal is whether the forwarding card disclosed in the Bell reference satisfies the processing engine limitation of the challenge claims and whether it is capable of performing the multi-protocol limitation in those claims as well.

[00:00:26] Speaker 00:
The board construed what it characterized as a multi-protocol limitation as two or more Ethernet ATM frame relay that constitute a first and second protocol within a layer.

[00:00:37] Speaker 01:
The board went on to... Well, I think Bell discloses different protocols, and the question is, does it suggest putting chips to address those protocols on a single core, right?

[00:00:51] Speaker 00:
That's right, Your Honor.

[00:00:52] Speaker 00:
And we can best, I think, get the framework for this discussion by looking at the figure on page 13 of the red brief.

[00:01:01] Speaker 01:
Well, you may be right that the figure and the specification don't clearly state that that should be done.

[00:01:08] Speaker 01:
But there's expert testimony that someone reading Bell would understand that, right?

[00:01:14] Speaker 00:
That's true.

[00:01:15] Speaker 00:
But Bell contravenes that testimony.

[00:01:17] Speaker 00:
And we think it's pretty clear.

[00:01:19] Speaker 02:
But even if it's true that you

[00:01:21] Speaker 02:
posit a reasonable alternative interpretation of Bell, isn't our question here whether or not there is substantial evidence from which the board could reach a contrary factual conclusion?

[00:01:35] Speaker 00:
Yes, that's the standard, Your Honor.

[00:01:36] Speaker 00:
But if an expert says that the sky is green when there's obvious empirical data that that is not true, then there is no substantial evidence supporting the opinions.

[00:01:45] Speaker 00:
And here, if Bell clearly says that you cannot simply add chips

[00:01:50] Speaker 00:
for the purpose of processing different kinds of protocol data.

[00:01:55] Speaker 00:
Despite what Dr. Lavien may have opined, it's clear that that just isn't Bell's teachings.

[00:02:00] Speaker 01:
Well, I don't see where Bell says that you can't do that.

[00:02:04] Speaker 01:
Well, there's a question of whether it says you should do that.

[00:02:08] Speaker 00:
Your Honor, first of all, if we go to page A4562 and look at column 50 of Bell, beginning at line 36,

[00:02:23] Speaker 00:
There, that's the passage that Dr. Lavien and Juniper rely upon for the Dr. Lavien's amended... What column and line number are you looking at?

[00:02:34] Speaker 00:
Sorry, column 50, line 36, Your Honor.

[00:02:38] Speaker 00:
Thank you.

[00:02:39] Speaker 00:
And that's the passage ending with the other protocols can also be implemented sentence that Dr. Lavien relied upon in modifying figure 36B from Bell.

[00:02:51] Speaker 00:
The very first sentence in that passage reads, the ingress interface chip will be specific to the protocol of the data within the path.

[00:02:58] Speaker 00:
So if we start adding chips to position 584B the way that Dr. Lavien has proposed, then the ingress interface chip won't be specific to the protocol of the data within the path anymore.

[00:03:14] Speaker 01:
Well, that may be true, but you could have multiple chips on the same card to process different protocols.

[00:03:21] Speaker 00:
First of all, there's no evidence as to why one of ordinary skill in the art would do that.

[00:03:25] Speaker 00:
Secondly, this is what 36B is modified by Dr. Lavien is what Dr. Lavien says one would have done.

[00:03:32] Speaker 00:
But that's not consistent with Bell's teachings.

[00:03:34] Speaker 00:
You would have to go completely outside of Bell to come up with this configuration.

[00:03:39] Speaker 00:
If we go to that same column beginning at line 50,

[00:03:44] Speaker 00:
Bell's specification there teaches that the ATMIP chip passes cells to an ingress bridge chip, e.g.

[00:03:50] Speaker 00:
BG586A through 586B, which serves as an interface to an ingress traffic management chip or chipset, e.g.

[00:03:58] Speaker 00:
TM588A to 588N.

[00:04:02] Speaker 00:
So if 584B, as Mr. Levy and Dr. Levy has opined, could be an ingress frame relay, then it couldn't pass.

[00:04:13] Speaker 00:
ATM data to these subsequent chips in this path.

[00:04:17] Speaker 00:
The only way that works is if all of these elements, 584A through 584N, are ingress ATM interface chips.

[00:04:28] Speaker 00:
If they're not, then it can't do this teaching that Bell says is what's supposed to be done in his system.

[00:04:35] Speaker 00:
We also have column 48, lines 41 to 42.

[00:04:39] Speaker 00:
Bell teaches that a forwarding card in a network device is similar to a line card of a computer system.

[00:04:45] Speaker 01:
Did you put on any expert testimony articulating the arguments that you're making now?

[00:04:51] Speaker 00:
We did.

[00:04:51] Speaker 00:
It was rejected by the board, Your Honor.

[00:04:55] Speaker 02:
Why is it rejected?

[00:04:57] Speaker 00:
The board said it was conclusory.

[00:05:00] Speaker 02:
And the board also found that you waived at least one aspect of this argument.

[00:05:04] Speaker 00:
We waived whether a processing, whether the chips

[00:05:09] Speaker 00:
in Bell can correspond to the processing engine.

[00:05:12] Speaker 00:
But really that argument is unnecessary to what we're actually saying.

[00:05:15] Speaker 00:
It doesn't really matter what is identified as the processing engine in Bell.

[00:05:20] Speaker 00:
It has to be capable of satisfying the multi-protocol limitation.

[00:05:24] Speaker 00:
And all of the descriptors of these ingress interface chips in Bell suggest that they have to be one and only one protocol.

[00:05:33] Speaker 00:
That you can't mix and match the way Dr. Lavien has suggested.

[00:05:38] Speaker 00:
Again, going back to what Bell said about forwarding cards being similar to line cards in a computer system, he actually describes line cards as well.

[00:05:49] Speaker 00:
And what he says, beginning at column two, line 50, line cards 16A and 16B could be cards that implement asynchronous transfer mode protocol over synchronous optical network protocol.

[00:06:03] Speaker 00:
as indicated by a particular card type, e.g.

[00:06:07] Speaker 00:
OXF002 and LideCard 16E could be a card that implements internet protocol IP over Sonnet as indicated by a different card type.

[00:06:17] Speaker 01:
The problem I'm having is you're asking us to be fact-finders here and you're asking us to treat your argument as

[00:06:26] Speaker 01:
expert evidence that contradicts what the board said.

[00:06:30] Speaker 01:
That's not our job.

[00:06:31] Speaker 01:
That's the problem.

[00:06:32] Speaker 00:
We're not asking, Judge, we're not asking you to be a fact finder.

[00:06:35] Speaker 00:
We're asking you to review the findings by the board in light of the evidence that was before the board.

[00:06:40] Speaker 00:
We're not asking you to, for example, read into these teachings.

[00:06:44] Speaker 00:
We're saying take the teachings at face value.

[00:06:46] Speaker 00:
They're part of the record.

[00:06:49] Speaker 03:
You're saying that the teachings are saying don't do what's in the patent, what's claimed

[00:06:55] Speaker 03:
And that's, I see the points that you're making and you're reading from the references and I see the points you're making, but I don't see what they say.

[00:07:01] Speaker 03:
They teach away from the combination.

[00:07:04] Speaker 03:
And then also just one other point, which is just that I wanted to recommend that in the future, when you give us prior references in the appendix, I suggest that you include all the pages of the reference.

[00:07:17] Speaker 03:
In the appendix, you'll see that we just get maybe eight pages of the spell reference.

[00:07:22] Speaker 03:
Not every page of the reference has been included.

[00:07:25] Speaker 00:
I apologize, Your Honor.

[00:07:26] Speaker 00:
That certainly wasn't our intention.

[00:07:28] Speaker 00:
I apologize if that happened.

[00:07:30] Speaker 00:
Certainly we will make sure that all references in their entirety are included next time.

[00:07:35] Speaker 02:
Didn't the Board make specific findings that Bell contained multiple references to flexibility and capability of handling various protocol data streams?

[00:07:46] Speaker 02:
aren't those relevant to the ultimate white?

[00:07:49] Speaker 02:
Doesn't that constitute evidence upon which the board could rely in concluding that your opponent's expert's testimony was worthy of consideration?

[00:08:02] Speaker 00:
Because the flexibility evidence that the board cited to, in fact, again, says exactly the opposite of what Dr. Lavien opined.

[00:08:12] Speaker 00:
If we look at column 53 of Bell, starting at line 9,

[00:08:16] Speaker 00:
This is the flexibility passage that, or part of the flexibility passage that Dr. Lavien relied upon.

[00:08:24] Speaker 00:
And it reads, as previously mentioned, each primary forwarding card may support a different protocol, e.g.

[00:08:31] Speaker 00:
ATM, MPLS, IP, and frame relay.

[00:08:34] Speaker 00:
So stopping there, the forwarding card is the entirety of Figure 36B that Dr. Lavien amended.

[00:08:41] Speaker 00:
So if a forwarding card supports a protocol,

[00:08:45] Speaker 00:
then you can't mix and match ingress frame relay and ingress ATM chips.

[00:08:50] Speaker 01:
It doesn't say that they can't support multiple protocols, right?

[00:08:55] Speaker 00:
Judge, I understand that.

[00:08:57] Speaker 00:
It says do it this way, which I agree is not the same thing.

[00:09:00] Speaker 01:
No, it doesn't say do it that way.

[00:09:02] Speaker 01:
It says each primary cord may support a different protocol, which is one possibility.

[00:09:07] Speaker 00:
Then let's read on, Your Honor.

[00:09:09] Speaker 00:
Similarly, each universal port card may support a different protocol, e.g.

[00:09:12] Speaker 00:
sonnet ethernet.

[00:09:14] Speaker 00:
A backup or spare forwarding card or universal port card must support the same protocol as the primary card or cards.

[00:09:22] Speaker 00:
Again, this is mandatory.

[00:09:24] Speaker 00:
This is no longer may.

[00:09:25] Speaker 00:
So again, you can't mix and match in a forwarding card.

[00:09:29] Speaker 00:
It has a backup card.

[00:09:30] Speaker 00:
Let's talk about a backup or spare forwarding card.

[00:09:33] Speaker 00:
That's right, Your Honor, but they would have the same configuration as 36B.

[00:09:38] Speaker 00:
There isn't a special category of primary and backup forwarding cards in Bell.

[00:09:43] Speaker 00:
The whole point of the flexibility is you have a multiplicity of these forwarding cards that you can switch traffic to as needed.

[00:09:50] Speaker 00:
So you're not going to have a primary forwarding card that has a multiplicity of protocols processed by it and then have a backup forwarding card that's only capable of a single protocol.

[00:09:58] Speaker 01:
Certainly one configuration, right?

[00:10:01] Speaker 01:
But it doesn't foreclose other configurations in which you have chips on a single card that can process different protocols.

[00:10:08] Speaker 00:
But Your Honor, that wasn't Dr. Lavien's opinion.

[00:10:11] Speaker 00:
Dr. Lavien didn't say, ignore what Bell says about this.

[00:10:14] Speaker 00:
Here is what someone would have done beyond that.

[00:10:17] Speaker 00:
What he said was, this is what Bell teaches, that 36B is merely an iteration of Bell's express teachings.

[00:10:25] Speaker 00:
I don't think he relied on this language for that.

[00:10:28] Speaker 00:
No, he didn't, your honor, but that's the point.

[00:10:30] Speaker 00:
He lifted a single passage talking about the ability to support multiple protocols and concluded that within the context of Bell, that meant

[00:10:40] Speaker 00:
inserting another card additional to whatever is there as opposed to swapping one out for the other.

[00:10:46] Speaker 00:
And it's true.

[00:10:47] Speaker 00:
Bell does say that the ingress chip could support multiple protocols.

[00:10:51] Speaker 00:
But what you do in that circumstance is you convert it from something that processes ATM to something that processes, for example, ethernet.

[00:10:59] Speaker 00:
You wouldn't convert it to something that has a multiplicity of chips, each specific to a protocol.

[00:11:03] Speaker 00:
Bell doesn't teach that.

[00:11:05] Speaker 00:
And again, if we're looking at what Dr. Lavien actually said,

[00:11:08] Speaker 00:
the evidence that the board relied upon.

[00:11:10] Speaker 00:
He didn't say someone reading Bell would have extrapolated Bell to do it this way.

[00:11:15] Speaker 00:
He said, this is what Bell teaches.

[00:11:18] Speaker 00:
And the only way it teaches that is if you take a relatively ambiguous single sentence out of Bell and ignore everything else that Bell teaches, including the passage I've just referred the panel to.

[00:11:29] Speaker 00:
If you read that one thing that Dr. Lavien relies upon in the context of the entire reference, which this court has said is the way you read references,

[00:11:38] Speaker 00:
then in the context of the entirety of that reference, what Bell is saying is you can have these ingress interface cards and you can have a multiplicity of chips in there, but they all handle the same protocol.

[00:11:54] Speaker 00:
Nothing in Bell suggests making these chips capable of handling a multiplicity of protocols at the same time.

[00:12:04] Speaker 00:
So if we continue from this passage in Bell,

[00:12:07] Speaker 00:
at column 53.

[00:12:09] Speaker 00:
It says, if forwarding or universal port cards in one quadrant support multiple protocols and the cross-connection cards are not interconnected, then each quadrant may need multiple backup forwarding and universal port cards, i.e.

[00:12:22] Speaker 00:
one for each protocol supported.

[00:12:25] Speaker 00:
So again, what Bell is saying is, if you're going to have a multiplicity of these protocols being handled, you have to have a multiplicity of forwarding cards, meaning

[00:12:33] Speaker 00:
A forwarding card is not going to be capable of processing a multiplicity of protocols.

[00:12:38] Speaker 00:
That's what Bell teaches in its entirety.

[00:12:41] Speaker 00:
And that's the thing Dr. Lavien ignored when he said, looking at the single sentence in isolation, I think this is what Bell teaches as I've depicted in Figure 36B.

[00:12:50] Speaker 00:
Thank you.

[00:12:51] Speaker 01:
Okay.

[00:12:54] Speaker 01:
We'll save the rest of your time.

[00:12:56] Speaker 01:
Ms.

[00:12:56] Speaker 01:
Carson?

[00:13:07] Speaker 04:
May I please the court?

[00:13:09] Speaker 04:
The board's factual determination that Bell meets the multi-protocol limitation is supported by substantial evidence and should not be disturbed.

[00:13:17] Speaker 04:
When looking at the record as a whole, it's clear that the board's finding that Bell's boarding cards are capable of receiving and processing multiple protocols of data is supported by detailed evidence and multiple different passages from Bell.

[00:13:34] Speaker 04:
I think in order to put this in context, some of the additional statements from Bell are important.

[00:13:41] Speaker 04:
So if you look at the network switches as a whole in Bell, it receives data through what are called universal port cards.

[00:13:48] Speaker 04:
And the reference indicates that each external network connection may provide multiple streams or paths, and each stream or path may include data being transmitted according to a different protocol.

[00:14:01] Speaker 04:
And it uses examples ATM, MPLS, IP, and frame relay.

[00:14:06] Speaker 04:
And that's at A4564, column 53, lines 50 through 64.

[00:14:12] Speaker 04:
So multiple different protocols come in through the universal port cards on different paths.

[00:14:19] Speaker 04:
Then the next step is that those paths of data are transferred to the forwarding cards.

[00:14:25] Speaker 04:
And what Bell says about that is that any port on any universal port card

[00:14:30] Speaker 04:
can be transported to any port on any forwarding card.

[00:14:35] Speaker 04:
So the logical inference from that is that if multiple paths of data are coming in and there are multiple protocols, and any one of those paths can be transferred to a forwarding card, the logical inference and the inference that the board drew from that was that the forwarding cards process multiple protocols of data.

[00:14:51] Speaker 04:
Now, Figure 36B

[00:14:54] Speaker 04:
provides an example of how that's implemented.

[00:14:57] Speaker 04:
And that is where there are multiple interface chips on a single forwarding card.

[00:15:03] Speaker 04:
And the passage that describes that forwarding card, as appellant referred to, is in column 50, lines 36 through 50.

[00:15:13] Speaker 04:
It's also important to put into context that particular passage as describing a single forwarding card.

[00:15:19] Speaker 04:
So appellant has urged the board and has now urged the court

[00:15:24] Speaker 04:
to interpret that as saying that other protocols can be implemented on other forwarding cards.

[00:15:31] Speaker 04:
But that's not what the passage says.

[00:15:33] Speaker 04:
The passage is talking about a single forwarding card, and it says as one example, an interface chip on that card could be ATM, but other protocols can also be implemented.

[00:15:45] Speaker 04:
And that language can also be implemented is important because in talking about this specific forwarding card,

[00:15:52] Speaker 04:
the patented, or Bell is saying that other protocols can also be implemented.

[00:15:56] Speaker 04:
If it was intending to disclose that different forwarding cards could have different protocols, the language chosen would have been other protocols can be implemented, not can also be implemented on that particular forwarding card.

[00:16:08] Speaker 02:
Well, that's reading an awful lot into the way that's phrased.

[00:16:11] Speaker 02:
I mean, he does cite a number of portions in the written description that do discuss

[00:16:20] Speaker 02:
swapping out one card for another, doesn't he?

[00:16:24] Speaker 04:
So there certainly are other embodiments described by Bell that talk about having a forwarded card that is specific to a particular protocol.

[00:16:33] Speaker 04:
The whole point of Bell is that it provides a modular system where it can be implemented in a way that is advantageous to the network administrator.

[00:16:43] Speaker 04:
And you can swap out components.

[00:16:44] Speaker 04:
And that's the whole purpose.

[00:16:45] Speaker 04:
So of course, some of those embodiments

[00:16:48] Speaker 04:
are directed towards situations where you might want to have a protocol-specific forwarding card.

[00:16:53] Speaker 04:
But other implementations, including the implementations where Bell talks about sending any path to any forwarding card, and indeed the implementation that's discussed in column 50, lines 36 through 50, talk about a situation where the forwarding card could process multiple protocols.

[00:17:11] Speaker 02:
So is that the only place that you rely upon to say that one card can

[00:17:18] Speaker 02:
process multiple protocols?

[00:17:20] Speaker 04:
So no.

[00:17:21] Speaker 04:
So column 50 is one example of that disclosure.

[00:17:24] Speaker 04:
The other disclosures that talk about the flexibility and the transmission of any path on any port to any forwarding card, that's discussed in column 52, lines 10 through 14.

[00:17:39] Speaker 04:
In addition, there's some language that the forwarding cards are similar to line cards.

[00:17:47] Speaker 04:
This is at column 48, lines 40 through 44, where it says that the forwarding cards are, quote, similar to line cards 16A to 16N.

[00:17:58] Speaker 04:
And if you look earlier in the reference at column 17, line 56 to 62, that's at A45, 46, Bell states that the courts of the line cards can be enabled to receive and process a single port protocol, or alternatively, each port can be enabled to run a different protocol.

[00:18:17] Speaker 04:
So that's another disclosure where the hoarding cards are being compared to the line cards that are disclosed earlier in the reference and the line cards process multiple protocols.

[00:18:29] Speaker 04:
I think also the important thing here is how these passages and Bell as a whole would be read by one of skill in the art.

[00:18:37] Speaker 04:
And the only evidence of that in the record is the declaration of Talabian.

[00:18:42] Speaker 04:
And he agrees that these passages and Bela as a whole will be read to enable and disclose boarding cards that process multiple protocols.

[00:18:51] Speaker 04:
And that evidence was unrebutted.

[00:18:53] Speaker 04:
Appellant mentioned that they had submitted expert testimony in that case, and it was disclosed, but that's actually not accurate.

[00:19:01] Speaker 04:
That was in the prior case with the 652 patent.

[00:19:05] Speaker 04:
In this particular case, they never submitted a declaration, and they never submitted any evidence from an expert or one of skill in the art as to how these disclosures would be read.

[00:19:17] Speaker 04:
And so all of the argument is just attorney argument.

[00:19:20] Speaker 04:
And what's important in this case is not what I think it says or what he thinks it says.

[00:19:25] Speaker 04:
It matters what one of skill in the art thinks it says.

[00:19:30] Speaker 04:
Another aspect that Appellant ignores in terms of the context of this particular passage in column 50 is that when describing the interface chip as one example of an ATM interface chip, Bell refers to

[00:19:47] Speaker 04:
584A.

[00:19:49] Speaker 04:
It doesn't refer to 584A through N. So that is another aspect that's in support of the way that Dr. Labian testified one of skill would read this passage.

[00:20:01] Speaker 04:
If Bell intended to disclose that all of the chips had to be the same protocol, it would say that the forwarding chip or 584A through N was an ATM chip.

[00:20:25] Speaker 01:
Anything further?

[00:20:30] Speaker 04:
No, Your Honor, unless the panel has any further questions.

[00:20:41] Speaker 03:
What is your response to Ms.

[00:20:43] Speaker 03:
Carson's reference to the disclosure that the forwarding cards are like the line cards, which are earlier disclosed as supporting multiple protocols?

[00:20:51] Speaker 00:
There, the specific reference that I read earlier about the description of line cards 16A and 16B said that each line card supports a different protocol.

[00:21:00] Speaker 00:
The multi-port reference that Ms.

[00:21:02] Speaker 00:
Carson referred to is that there could be a series of ports connected to individual line cards, each supporting a different protocol.

[00:21:10] Speaker 00:
If a line card is analogous to a forwarding card, then that means that each forwarding card supports a different protocol.

[00:21:18] Speaker 00:
In order for a forwarding card to be a processing engine as claimed in the patent in question, each forwarding card would have to itself process a multiplicity of protocols.

[00:21:29] Speaker 00:
So the very passage that Ms.

[00:21:30] Speaker 00:
Carson is citing, what it basically says is,

[00:21:33] Speaker 00:
You can have one forwarding card for one protocol, another forwarding card for another protocol, and a third forwarding card for a third protocol.

[00:21:41] Speaker 00:
What it doesn't say is you can have one forwarding card for a bunch of protocols.

[00:21:46] Speaker 03:
And that's what's important.

[00:21:47] Speaker 03:
So why would it mean that each, on the chip, each forwarding card would have a different protocol?

[00:21:53] Speaker 00:
The forwarding card contains the chips, Your Honor.

[00:21:55] Speaker 03:
So what would it mean is each chip on the forwarding card?

[00:21:57] Speaker 00:
Because that's what that teaching says.

[00:21:59] Speaker 00:
It says that each forwarding card, which has a multiplicity of chips in it,

[00:22:03] Speaker 00:
584A through N can process a single protocol.

[00:22:08] Speaker 00:
And if you want a second protocol processed in a quadrant through this multiplicity of, in this case, line cards, you have to add another port and another forwarding card or another line card in this case that itself is able to process a different protocol.

[00:22:21] Speaker 00:
But that's not what the claimed invention is all about.

[00:22:24] Speaker 00:
It says a single processing engine, i.e.

[00:22:26] Speaker 00:
one line card or one forwarding card, is capable on its own of processing a multiplicity of protocols.

[00:22:32] Speaker 00:
So the very passage she referred the court to, in fact, says precisely what we say Bell is teaching, which is if you want multiple protocols processed, you have to have a multiplicity of line cards or forwarding cards by analogy.

[00:22:47] Speaker 00:
And Bell teaches nowhere having a single line card or forwarding card that's capable of processing multiple protocols.

[00:22:54] Speaker 00:
In other words, the multi-protocol limitation as defined by the board capable of processing

[00:22:59] Speaker 01:
multiple protocols in the same layer isn't satisfied, isn't taught anywhere by Bell.