[00:00:00] Speaker 01:
L versus Acceleron.

[00:00:40] Speaker 01:
Miss Hayman, please proceed.

[00:00:42] Speaker 01:
Am I saying your name right?

[00:00:43] Speaker 00:
Hayman.

[00:00:44] Speaker 01:
Hayman, sorry.

[00:00:45] Speaker 01:
Hayman, please proceed.

[00:00:54] Speaker 00:
Thank you.

[00:00:55] Speaker 00:
Good morning.

[00:00:56] Speaker 00:
May it please the court.

[00:00:57] Speaker 00:
My name is Paula Hayman, and I'm here on behalf of Dell.

[00:01:01] Speaker 00:
The first thing I'd like to address today is the legal error by the board in determining whether the prior art HIP reference discloses the limitations of claims 14 through 17 and 34 through 36.

[00:01:14] Speaker 00:
To illustrate this error, I'd like to focus on the board's decision with respect to claim 14.

[00:01:21] Speaker 00:
In the final decision, the board only performed half of the analysis required to determine whether the prior art had.

[00:01:27] Speaker 00:
Can I ask you a question?

[00:01:29] Speaker 04:
Sure, Your Honor.

[00:01:30] Speaker 04:
Do I understand right that you do not read network, what's the phrase, network?

[00:01:41] Speaker 04:
NAS.

[00:01:41] Speaker 04:
Yeah, NAS, as covering, as a term of art,

[00:01:47] Speaker 04:
any device on which you can store stuff that's attached to a network.

[00:01:51] Speaker 04:
It's actually, as a term of art, somewhat more specific than that.

[00:01:55] Speaker 04:
There are things in the market called NAS, and there are other storage devices that might be connected to a network that are not NAS.

[00:02:05] Speaker 00:
That is correct, Your Honor, yes.

[00:02:07] Speaker 04:
Isn't that a problem?

[00:02:09] Speaker 04:
Because HIP does not

[00:02:13] Speaker 04:
say and does not require inherently that the OS be fetched from the NAS.

[00:02:22] Speaker 04:
Is it 54?

[00:02:24] Speaker 00:
Yes, it is.

[00:02:24] Speaker 00:
That's right.

[00:02:26] Speaker 00:
No, it's our position that that's not a problem.

[00:02:29] Speaker 00:
Inherency was not argued below in the IPR.

[00:02:33] Speaker 00:
Dell did not argue in herency.

[00:02:36] Speaker 00:
What is at issue here is what

[00:02:41] Speaker 00:
requires further programming.

[00:02:44] Speaker 01:
No, but you only get to the further programming of Typhoon in those cases if

[00:02:50] Speaker 01:
there is an actual disclosure of booting from a NAS as opposed to booting from a LAN.

[00:02:57] Speaker 01:
And that's a factual question, not a legal question.

[00:03:00] Speaker 01:
What does HIP disclose?

[00:03:02] Speaker 01:
When it says booting from a LAN, is it actually disclosing booting from a NAS, though it may not be telling you how to do it and though there may be additional programming that's necessary to achieve it?

[00:03:11] Speaker 01:
But the factual question that you lost on at the board is they concluded that HIP, when it says booting from LAN, doesn't include NAS and doesn't disclose booting from a NAS.

[00:03:22] Speaker 01:
They didn't decide this case on the idea of one wouldn't know how to future program to make it happen.

[00:03:30] Speaker 01:
They decided on a lack of disclosure.

[00:03:32] Speaker 01:
And not because the programming isn't there, but because there's no actual disclosure of even doing it.

[00:03:37] Speaker 01:
Forget about how you do it via programming.

[00:03:40] Speaker 01:
So that's a fact question, and that's a substantial evidence review.

[00:03:43] Speaker 01:
So I personally don't even get to your legal point on typhoon and programming, because there's a substantial evidence standard of review here, and the board found HIP doesn't disclose the fact that you need as the predicate.

[00:03:57] Speaker 00:
Well, it's our position that the board overlooked the evidence that is in HIP.

[00:04:01] Speaker 00:
If you actually look in hip, hip discloses.

[00:04:05] Speaker 01:
Show me column and line number where hip discloses the booting from a NAS.

[00:04:10] Speaker 01:
Because I thought you hung everything on this one little phrase.

[00:04:15] Speaker 01:
Where is it?

[00:04:16] Speaker 01:
So you show me what?

[00:04:17] Speaker 01:
464, column 9 at the bottom.

[00:04:20] Speaker 01:
Yeah, exactly.

[00:04:21] Speaker 01:
Show me what you would guess.

[00:04:22] Speaker 01:
Column 9, line 61.

[00:04:23] Speaker 00:
Line 61 to 62, yes.

[00:04:25] Speaker 00:
Right.

[00:04:25] Speaker 00:
That is boot from LAN.

[00:04:27] Speaker 00:
And Dr. Horst has testified, and his testimony is uncontested, that boot from LAN, and it's in quotes in the patent, means it is an industry standard for remote booting over a network.

[00:04:42] Speaker 04:
But that's why I asked you the question.

[00:04:44] Speaker 04:
There are other storage devices in HIP, so it doesn't have to boot from 54.

[00:04:50] Speaker 04:
It could boot from other things.

[00:04:52] Speaker 00:
Correct.

[00:04:53] Speaker 00:
That's where the looking at the fantasy sports and finging cases helps the analysis.

[00:05:00] Speaker 00:
Because if there is programming to boot from any device on the network, meaning boot from LAN, you boot from any device on network 30 and HIP,

[00:05:12] Speaker 00:
Vigin and fantasy sports tell you that it's not further programming if you select from an existing option.

[00:05:19] Speaker 01:
But I'm still not even at that point yet, because you still haven't shown me how hip discloses booting from a NAS.

[00:05:27] Speaker 01:
I don't have a problem with your programming argument.

[00:05:28] Speaker 01:
I just don't get there.

[00:05:30] Speaker 01:
And so far, you haven't at least satisfied me on that.

[00:05:33] Speaker 01:
So do you want to show me the hoarse testimony so that I can try to get with you on point one?

[00:05:39] Speaker 01:
Because if you don't get me on point one, I never get to your point two.

[00:05:42] Speaker 00:
The horse testimony is at paragraph 59 of his declaration, and then that's A744 to 745.

[00:05:54] Speaker 00:
And actually, the quote about the boot from LAN and remote booting being standardized, that is on page A745, a few lines down.

[00:06:06] Speaker 01:
OK, so I'm on 744 and 745.

[00:06:09] Speaker 01:
What sentences do you want me to focus on?

[00:06:13] Speaker 00:
If you focus on the second sentence on that page, it says, HIP further describes the capability of the web server processing card 32 to boot from LAM.

[00:06:27] Speaker 00:
where boot refers to initial operations a computer undergoes on power up, including loading the operating system and LAN as an acronym for local network.

[00:06:38] Speaker 03:
But, I mean, it's the same problem.

[00:06:39] Speaker 03:
I mean, it discloses broadly that you can boot from LAN.

[00:06:43] Speaker 03:
It also discloses network attached storage, but it doesn't say that you can boot from the network attached storage.

[00:06:54] Speaker 00:
HIP does not explicitly say that, that is correct.

[00:06:57] Speaker 03:
Why isn't that an anticipation problem then?

[00:07:00] Speaker 03:
I mean, it sounds like it may have been obvious to one of skill of the art, but you didn't ask for this to be invalidated on obviousness grounds.

[00:07:09] Speaker 00:
We did not.

[00:07:10] Speaker 00:
And what both, actually both experts have agreed that a boot image can be stored on any one of the devices of the network of HIP.

[00:07:19] Speaker 01:
And... That's not the same thing as disclosing it in a particular reference.

[00:07:23] Speaker 01:
The fact that it could be done

[00:07:24] Speaker 01:
The fact that food from land actually implicates at least five different things that I can think of off the top of my head, and one of them might be NAS doesn't mean it's disclosing NAS.

[00:07:35] Speaker 01:
That's the problem.

[00:07:37] Speaker 01:
Anyway, maybe instead of focusing on the, are there any other issues you'd like to turn to?

[00:07:44] Speaker 01:
Unless there's something else about this issue.

[00:07:47] Speaker 01:
With respect to those claims.

[00:07:48] Speaker 03:
Just to clarify, because I was a little, because the claims

[00:07:53] Speaker 03:
34 to 36, you did ask for an obviousness finding, but as far as I can tell, you didn't try to separate out the legal argument on 14 from 34 to 36.

[00:08:06] Speaker 03:
Is that right?

[00:08:09] Speaker 00:
Yes, I believe that's correct.

[00:08:10] Speaker 00:
On this issue.

[00:08:11] Speaker 03:
I mean, I understand you went to Gasbrick on another issue that's not disputed now, but you rise and fall on

[00:08:19] Speaker 03:
this issue for both of those?

[00:08:20] Speaker 00:
We relied on the same portions of the HIP reference.

[00:08:23] Speaker 00:
That is correct.

[00:08:23] Speaker 00:
I guess I'm in my rebuttal time in just one minor point on claims 34 through 36.

[00:08:30] Speaker 00:
We believe that there was no obviousness analysis performed by the board at all with respect to those claims.

[00:08:37] Speaker 04:
Can I switch topics, and I know you're going over your time, but on the cross appeal.

[00:08:44] Speaker 04:
My understanding is that the reliance on the unnumbered slide, this is I guess claim three, was raised for the first time during the oral argument.

[00:08:58] Speaker 04:
I didn't see anything in any papers before.

[00:09:01] Speaker 04:
Why does that all by itself not require a vacator because the other side simply did not have an opportunity to respond to the sole thing that the board relied on for one of the required claim elements?

[00:09:16] Speaker 00:
Your Honor, that issue was not raised for the first time at oral argument.

[00:09:21] Speaker 00:
Figure 12 of HIP was cited in Dell's briefing.

[00:09:25] Speaker 01:
I have that briefing right in front of me.

[00:09:26] Speaker 01:
It's page 8244.

[00:09:28] Speaker 01:
Why don't you open it up to that page?

[00:09:30] Speaker 01:
A244, this is the portion of the reply brief, which is the only thing that you reference.

[00:09:35] Speaker 01:
It's not earlier, right?

[00:09:37] Speaker 01:
It's only the reply brief.

[00:09:38] Speaker 01:
And on page 244, you do reference figure 12.

[00:09:42] Speaker 01:
But importantly, you don't just stop at figure 12 generally.

[00:09:45] Speaker 01:
And that would be a little odd, right?

[00:09:47] Speaker 01:
Just to say, oh, the whole figure is somewhere on there.

[00:09:49] Speaker 01:
We're not going to tell you where.

[00:09:51] Speaker 01:
You actually tell them where.

[00:09:52] Speaker 01:
You say element 278.

[00:09:56] Speaker 01:
Element 278 is the back plate.

[00:09:59] Speaker 01:
That's the thing with the holes on the back.

[00:10:01] Speaker 01:
That's not the portion of Figure 12 that the board found amounted to a caddy, is it?

[00:10:08] Speaker 00:
It is a part of what the board found.

[00:10:10] Speaker 01:
No, no, no, no, no, no.

[00:10:12] Speaker 01:
The board found that little thing that it sits on top of is the caddy.

[00:10:18] Speaker 01:
That little tiny unnumbered piece on Figure 12.

[00:10:22] Speaker 01:
278 has nothing to do and is in no way connected to those slides on the bottom.

[00:10:28] Speaker 01:
Look at the picture.

[00:10:30] Speaker 01:
They're not connected in any way.

[00:10:31] Speaker 01:
Discrete elements.

[00:10:35] Speaker 00:
The slides, Your Honor, however, help align the... They allow the power supply to slide in to the chassis, and they align those connectors.

[00:10:46] Speaker 00:
The help, the connectors.

[00:10:47] Speaker 01:
You didn't point to this.

[00:10:48] Speaker 01:
The slides are the only thing the board found amounted to a caddy.

[00:10:52] Speaker 01:
It didn't say the slides in combination with the mounting frame and the door and the 278.

[00:10:58] Speaker 01:
The board didn't find element 278 was part of a caddy.

[00:11:02] Speaker 01:
The board found the slides were a caddy.

[00:11:06] Speaker 01:
You didn't point to the slides at all in figure 12.

[00:11:10] Speaker 01:
You directed the board to figure 12 and in particular

[00:11:13] Speaker 01:
to element number 278, particularly.

[00:11:17] Speaker 01:
And that's not the same thing.

[00:11:20] Speaker 01:
If I point the board to a capacitor and say, oh yeah, that's the element, and then it turns out it's not the capacitor at all, it's a transistor on the other end of the circuit, it happens to also be pictured, how does that give them an opportunity to respond to your argument?

[00:11:35] Speaker 00:
Your Honor, during the oral hearing, it was questions by, I believe it was Judge Gianetti to Dell.

[00:11:41] Speaker 00:
Judge Gianetti asked us about, we were talking about caddies.

[00:11:46] Speaker 00:
And figure 12 was discussed.

[00:11:48] Speaker 00:
He was asking about figure 12.

[00:11:49] Speaker 01:
And that's when- Nobody disputes that.

[00:11:51] Speaker 01:
Nobody disputes that figure 12 was discussed.

[00:11:54] Speaker 01:
But prior to that oral argument, there had never been even a tiny suggestion by anyone that those slides amounted to the caddy.

[00:12:02] Speaker 01:
In fact, your suggestion only brought up in the reply brief wasn't that the slides amounted to a caddy.

[00:12:07] Speaker 01:
It was rather that a totally perpendicular and separate element amounted to the caddy, 278.

[00:12:13] Speaker 01:
And then I went back and read all of your Dr. Horst testimony, which is also cited in your reply brief, to see is it possible Dr. Horst testified to that.

[00:12:21] Speaker 01:
He did not.

[00:12:22] Speaker 01:
He testified to the door, which is 262, and the frame on the outside could amount to a caddy.

[00:12:29] Speaker 01:
Never did he ever point to, talk about, or discuss those slides anywhere.

[00:12:34] Speaker 01:
So you have no expert testimony on that.

[00:12:36] Speaker 01:
You did not cite it in your reply brief.

[00:12:38] Speaker 01:
Then it comes up in oral argument.

[00:12:40] Speaker 01:
You might win on it, but there are some procedural things.

[00:12:43] Speaker 01:
I mean, why don't they?

[00:12:45] Speaker 01:
How about this?

[00:12:46] Speaker 01:
If I read it the way I just suggested, doesn't it have to go back for them to have an opportunity to respond?

[00:12:57] Speaker 00:
No, Your Honor, we don't believe it does.

[00:13:00] Speaker 00:
The guidelines at the board say no new evidence, no new arguments.

[00:13:11] Speaker 00:
This wasn't a new argument.

[00:13:13] Speaker 00:
We were arguing about caddies, whether caddies are present or not.

[00:13:16] Speaker 04:
But that just makes it seem like it was, I don't know, this is not quite the right term, but it invited error.

[00:13:25] Speaker 04:
You didn't do it su-sus-fonte, but nevertheless, the board

[00:13:30] Speaker 04:
found a claim element on a basis that the other side had never been given an opportunity to respond to, including by putting in evidence.

[00:13:40] Speaker 04:
And I don't think you've made a case here for harmless error.

[00:13:46] Speaker 04:
That is, once you see the slide, there could not possibly be a factual dispute about that satisfying it, which would be a slightly odd argument if

[00:13:57] Speaker 04:
You had never even thought of pointing to that slide to satisfy the element.

[00:14:05] Speaker 04:
But you don't make a kind of harmless error argument on that for the board's reliance on the slide.

[00:14:15] Speaker 00:
No, Your Honor.

[00:14:16] Speaker 04:
And can I ask you about Claim 20?

[00:14:20] Speaker 04:
So the board said the, and I'm probably misremembering the language,

[00:14:26] Speaker 04:
It's said that that claim element of claim 20 requires a Ethernet path that if somebody wanted to use for a particular kind of polling activity from the microcontroller to other stuff connected to the path, that they could.

[00:14:51] Speaker 04:
and I'm not quite sure how to ask this, but that feels to me, and I'd like you to just clarify and address and so on, it feels to me like that view is pretty unreasonable because to have the ethernet path capable of a communication seems to give essentially no meaning or something like no meaning

[00:15:20] Speaker 04:
to the fairly detailed description of the activity, of the communication activity that could travel over that path, which presumably would enable that same path could carry, you know, a thousand other kind of communications.

[00:15:36] Speaker 04:
It seems to be a kind of a real disparity.

[00:15:38] Speaker 04:
Why did they put all this language in there about polling?

[00:15:42] Speaker 04:
Why didn't they just say an Ethernet path between the microcontroller and

[00:15:48] Speaker 04:
those other devices full stop?

[00:15:51] Speaker 04:
Or are there some Ethernet paths that couldn't allow the polling and some that could, so it actually adds something?

[00:15:59] Speaker 04:
It's a little bit of a confused jumble, my question, but it feels like you're not giving, or the board's not giving enough meaning to this fairly elaborate description of the particular kind of communication that would travel over this path.

[00:16:17] Speaker 00:
It's our position that the board looked at the words of the claims.

[00:16:21] Speaker 00:
And I think if you look at the words of the claims, it is worded kind of oddly.

[00:16:26] Speaker 00:
It says, a dedicated ethernet path that provides the microcontroller a connection to pull.

[00:16:33] Speaker 00:
To do something.

[00:16:34] Speaker 00:
Right.

[00:16:34] Speaker 00:
And so what they're claiming there is the actual connection, the physical structure.

[00:16:38] Speaker 04:
Right.

[00:16:38] Speaker 04:
Would any ethernet path have the ability to carry

[00:16:45] Speaker 04:
this polling communication if the microcontroller got it into its head to send that communication?

[00:16:53] Speaker 00:
As long as the microcontroller, as long as that path connected the microcontroller to the other stuff in the system, the other modules.

[00:17:01] Speaker 03:
But it's not just talking about any ethernet path, it's talking about a dedicated ethernet path that's separate from the other one.

[00:17:09] Speaker 03:
that's there so it can remotely pull.

[00:17:11] Speaker 03:
And I understand there's a reason for that, so that if some part of it goes down, it doesn't all go down, and it can still do the pulling.

[00:17:19] Speaker 03:
Why isn't that specific function part of that claim?

[00:17:23] Speaker 03:
It seems to me you're making kind of inconsistent arguments here on claim 20, as opposed to what you were talking about earlier about it has to be capable of that function, but doesn't have to actually do it.

[00:17:36] Speaker 03:
Well, looking at the words... You're reading out the remotely polling here and saying it just has to be capable of it, whereas before you're saying it just has to be capable of it, it doesn't actually have to say it.

[00:17:47] Speaker 03:
Why isn't that inconsistent findings by the board here on this issue?

[00:17:52] Speaker 00:
The words of the claims that we're looking at, claim 14 and claim 20, are different.

[00:17:58] Speaker 00:
You know, claim 20 is a bios for instructing.

[00:18:05] Speaker 00:
That has to be programmed to do that instruction.

[00:18:09] Speaker 03:
But this is an ethernet path with a connection for remotely polling.

[00:18:12] Speaker 03:
Are you saying the difference here is it uses the word two instead of four?

[00:18:16] Speaker 00:
No.

[00:18:17] Speaker 00:
No, Your Honor, we're not.

[00:18:18] Speaker 00:
No, you focus on the word that it's the claim says that you have a dedicated ethernet path that provides a connection.

[00:18:26] Speaker 02:
To remotely poll.

[00:18:27] Speaker 00:
To remotely poll, that's correct.

[00:18:30] Speaker 04:
Would the scope of the claim be any different if you dropped those three words out in your view?

[00:18:35] Speaker 04:
So it said provides an ethernet path that provides the microcontroller module with a connection to the CPU module, the power module, and the ethernet switch module.

[00:18:57] Speaker 00:
I don't think the scope would be any different, Your Honor.

[00:18:59] Speaker 04:
That's a problem, right?

[00:19:00] Speaker 04:
Because then you just haven't given meaning to

[00:19:04] Speaker 04:
to where the board hasn't given meaning to the inclusion of those words.

[00:19:11] Speaker 04:
Is that wrong?

[00:19:17] Speaker 00:
Again, I think focusing on the words of the claims, what is being claimed is a structure.

[00:19:22] Speaker 00:
It's a wire that's being claimed, not the signals that flow along that wire.

[00:19:28] Speaker 00:
So that would be our position.

[00:19:30] Speaker 01:
I think that we should move on and hear from Mr. Crane.

[00:19:32] Speaker 01:
Don't worry, I'll restore some of your rebuttal time.

[00:19:34] Speaker 01:
It certainly won't be eight minutes, but I'll give you some of that.

[00:19:37] Speaker 01:
We'll see.

[00:19:38] Speaker 01:
Mr. Crane.

[00:19:48] Speaker 02:
May it please the court.

[00:19:50] Speaker 02:
I would like to pick up, if I may, with regard to an issue that was addressed with Claim 3.

[00:19:56] Speaker 02:
And the court asking about whether or not if the court agrees with Acceleron is to vacate the PTAB's ruling an appropriate result.

[00:20:09] Speaker 02:
And certainly, we would understand that that could be a result that this court could choose to take.

[00:20:14] Speaker 02:
But I would also point out that the court could choose to also reverse the PTAB on that specific point because

[00:20:21] Speaker 02:
As, you know, Acceleron has put forward, we do believe that this argument was addressed for the first time in regard to the slide structure in the hit pad.

[00:20:33] Speaker 04:
But if that's a procedural error, which is the premise of your question, why is that not a fixable procedural error?

[00:20:43] Speaker 04:
That is, on remand, the board could have to say, by the way, we're looking at this slide.

[00:20:49] Speaker 04:
30 days and give us whatever evidence and argument you have about why that slide is not ACADE.

[00:20:56] Speaker 02:
I do agree that that is a path the court could take.

[00:20:59] Speaker 02:
I also believe that a path that is available to the court is to simply reverse on that point for violation of the promulgated rules of the PTAB.

[00:21:09] Speaker 02:
And that is the only element that the PTAB offer.

[00:21:13] Speaker 04:
Aren't we generally under an obligation, and maybe the APA even says this or something,

[00:21:20] Speaker 04:
only prejudicial procedural errors should be a basis for, here, what you're asking for is outright reversal.

[00:21:29] Speaker 04:
We don't know if this is prejudicial.

[00:21:33] Speaker 02:
With regard to the substantial prejudice element, is that what you're asking about, to acceleron?

[00:21:38] Speaker 04:
Do you understand your question?

[00:21:39] Speaker 04:
Some notion that the fact that you were

[00:21:43] Speaker 04:
denied that you were not given, I should say, an opportunity to address a fact on which the board ended up relying.

[00:21:52] Speaker 04:
We don't know if that was prejudicial to the ultimate outcome on claim three, because if you're given the opportunity, maybe you put on evidence and the board says, that's completely wrong.

[00:22:07] Speaker 02:
With respect to that question, Judge, the Align Tech case, if I understand it correctly, suggests that because the PTAB did not waive any rule or suspend any rule, we're not required to show substantial prejudice.

[00:22:21] Speaker 02:
However, I do believe that we are substantially prejudiced by the fact that we were not given that opportunity.

[00:22:28] Speaker 03:
Let me ask you this.

[00:22:30] Speaker 03:
Assuming you had been given the opportunity, and you'd known that they were going to point to this, and the board did find that this unmarked portion was a caddy, could that be substantial evidence to support the anticipation finding?

[00:22:45] Speaker 02:
We believe it would not be, and for several reasons.

[00:22:49] Speaker 02:
For one, the word slides is not even recited in the HIP Act.

[00:22:56] Speaker 02:
It is also the difference, and this goes back to the claim construction issue that Acceleron offered.

[00:23:02] Speaker 02:
Acceleron offered the claim construction that a slide is a carrier for a module.

[00:23:06] Speaker 02:
I'm sorry.

[00:23:07] Speaker 02:
Right.

[00:23:07] Speaker 04:
So let's put that aside.

[00:23:09] Speaker 02:
OK.

[00:23:10] Speaker 02:
Right.

[00:23:10] Speaker 02:
Well, and to answer your question, Judge Hughes, it has to do specifically that the slide is permanently attached to the chassis because the carrier for a module includes a notion of transportability.

[00:23:23] Speaker 02:
So the fact that if you look at the pictures, I believe we included it in the main brief, in the red brief, it appears to be permanently attached.

[00:23:30] Speaker 02:
So it can't be a carrier in that notion.

[00:23:33] Speaker 02:
It appears to be merely a pedestal, much like this podium or the table, that is permanently fixed.

[00:23:40] Speaker 02:
So therefore, it cannot be the claimed caddy as it was construed.

[00:23:44] Speaker 02:
It doesn't protect the modules, which is another notion of a caddy that we discussed in our brief.

[00:23:53] Speaker 02:
And perhaps most importantly, because claim three says that caddies provide airflow, the slide structure appears to actually block the airflow.

[00:24:05] Speaker 03:
And again- But how do we know that?

[00:24:07] Speaker 03:
These pictures are all very, I mean, they don't have much detail.

[00:24:11] Speaker 03:
It's very hard to figure out what any of them are doing, including your pictures and your description of what your carrier is.

[00:24:17] Speaker 03:
I mean, that all seems to be very specific fact-finding that should have been done by the board.

[00:24:24] Speaker 02:
We agree that it was an issue that should have gone up before the board, and we have the opportunity to respond.

[00:24:29] Speaker 02:
We do believe that it is clear that this slide does not rise to the issues.

[00:24:36] Speaker 02:
I mean, we try to point these things out.

[00:24:38] Speaker 02:
I'm not aware of any evidence in the record that discusses this.

[00:24:43] Speaker 02:
So therefore, for that reason, because it was brought up at the juncture where it was, I believe this court could decide that the PTAB

[00:24:52] Speaker 02:
violated its rules and that that would not be a claim.

[00:24:56] Speaker 04:
Was there some evidence from maybe the other side's experts that if one thought for a minute about what that slide must be like it really must amount to two separate runners because nobody would put one of those down there that was a single pallet or something

[00:25:20] Speaker 04:
without the ability for air to flow front to back?

[00:25:24] Speaker 02:
I'm not aware of any, as I think of the record.

[00:25:27] Speaker 02:
And I think that further solidifies the point of its late arrival into this PTAP proceeding.

[00:25:34] Speaker 02:
I don't recall having attended the depositions and having gone through the record.

[00:25:38] Speaker 02:
I'm not aware of any.

[00:25:41] Speaker 02:
With respect to, I'd like to move to claim 20, if I may.

[00:25:46] Speaker 02:
and speak to the polling notion.

[00:25:48] Speaker 02:
We actually do agree that to remotely poll is a functional limitation.

[00:25:53] Speaker 02:
We find that this appears to be similar.

[00:25:55] Speaker 01:
It's a functional limitation in this structural claim?

[00:25:58] Speaker 02:
Correct.

[00:25:59] Speaker 02:
This is an apparatus claim.

[00:26:01] Speaker 01:
Yes.

[00:26:01] Speaker 01:
So how is it a functional limitation?

[00:26:04] Speaker 02:
We find it to be that there is the function of the microcontroller module to remotely poll the CPU module, the ethernet switch module,

[00:26:14] Speaker 02:
and I believe the power module.

[00:26:16] Speaker 02:
And as the court spoke about a moment ago, that there is a dedicated ethernet path between point A and point B that provides the connection.

[00:26:24] Speaker 01:
This claim would certainly have been a lot clearer if you had said a micro-control module to remotely pull the CPU, wouldn't it?

[00:26:30] Speaker 02:
Perhaps it may have been, yes.

[00:26:32] Speaker 01:
That's all like, perhaps it may have been?

[00:26:34] Speaker 01:
That's as far as you'll go, really?

[00:26:35] Speaker 01:
OK.

[00:26:36] Speaker 01:
This is going to be a deposition I see.

[00:26:39] Speaker 01:
All right.

[00:26:40] Speaker 01:
Well, then.

[00:26:43] Speaker 01:
I don't understand.

[00:26:44] Speaker 01:
If something has to have a certain capacity, and in this case, this claim element is not directed to what capacity the micro control module has to have.

[00:26:54] Speaker 01:
It's actually directed to what capacity the ethernet path and the connection has to have, isn't it?

[00:27:01] Speaker 01:
Isn't this claim element directed to what the capacity of the ethernet path has to be?

[00:27:08] Speaker 02:
The claim element as a whole, I don't believe that's correct.

[00:27:11] Speaker 02:
I believe that it points to... The where-in clause in the claim element.

[00:27:17] Speaker 01:
The where-in clause?

[00:27:19] Speaker 01:
A micro-control module and a dedicated ethernet path.

[00:27:23] Speaker 01:
Where-in the dedicated ethernet path, blah, blah, blah, blah, blah, blah, blah.

[00:27:28] Speaker 01:
Right.

[00:27:28] Speaker 01:
So, right, isn't the where-in clause directed to the capacity that the ethernet path must have?

[00:27:33] Speaker 02:
I don't believe it's limited to that.

[00:27:35] Speaker 02:
It certainly starts out with that, and it's, you know...

[00:27:38] Speaker 02:
The way I see this claim is that it provides for, it gives a structure on one side, structure on the other side, and then Judge Moore, as you talk about, it connects the two with a dedicated ethernet path.

[00:27:49] Speaker 02:
But it doesn't stop there.

[00:27:50] Speaker 02:
And it goes on to tell us that the dedicated ethernet path is different from another type of connection, Judge Hughes, which I believe you pointed to.

[00:27:58] Speaker 02:
And then it also tells us why

[00:28:01] Speaker 02:
Then it gets into the functional aspect of this claim that the microcontroller module, and I don't believe anyone has suggested that the microcontroller module is not the device that is the device configured to remotely poll, but that is what it does.

[00:28:18] Speaker 02:
And if we take that out, then it could be anything.

[00:28:21] Speaker 02:
I think we spoke about in the brief that you could, you know, if this language, as the PTAP concluded, is not a requirement of the claim, then you could have said anything there.

[00:28:30] Speaker 02:
But because the patentee chose to put that language in, it has to have some input.

[00:28:36] Speaker 03:
I take it you think there's an important reason for having this dedicated Ethernet path rather than just saying the microcontroller itself can pull the CPU over any Ethernet path.

[00:28:50] Speaker 02:
I think that's correct, Judge.

[00:28:52] Speaker 02:
I can't think where this was in the record, but I do seem to recall that you have these separate highways, if you will.

[00:28:59] Speaker 02:
You have one between the CPU modules, and that's where your data is, and you want to give that priority, and then you have this separate one so that the microcontroller module can also communicate with them.

[00:29:10] Speaker 02:
I think that may be the purpose behind it, and I think that may have come out, but I don't recall exactly where.

[00:29:15] Speaker 02:
So with regard to claim 20,

[00:29:18] Speaker 02:
We certainly believe that that claim limitation has meaning and was improperly construed.

[00:29:25] Speaker 01:
This is the PTO.

[00:29:27] Speaker 01:
And you might be right under a Phillips construction, but they have to employ the broadest reasonable construction.

[00:29:35] Speaker 01:
And so given the way that this is worded, where the wear-in clause modifies not the microcontroller, but expressly the dedicated ethernet path, why isn't the broadest reasonable construction

[00:29:49] Speaker 01:
the one that the PTO chose, which is wherein the dedicated ethernet path provides a connection that is capable of doing this.

[00:29:59] Speaker 01:
It doesn't mean the microcontroller has to do it.

[00:30:02] Speaker 01:
It just means the ethernet path has to provide a connection that's capable of doing it.

[00:30:08] Speaker 02:
Because, Judge, even with broadest reasonable construction,

[00:30:11] Speaker 02:
we still look at the specification.

[00:30:13] Speaker 02:
We still perform, you know, look at the claims as a whole, look at the specification.

[00:30:17] Speaker 02:
And I believe when we do that, we see that it is not just all about the dedicated Ethernet path.

[00:30:23] Speaker 02:
The dedicated Ethernet path clearly performing or serving as the connecting communication, no doubt about it.

[00:30:30] Speaker 02:
But when we look at the specification, we are further informed that

[00:30:33] Speaker 02:
the two remotely pull has a significant function with the microcontroller as it communicates and reaches out and asks for and obtains certain health information.

[00:30:45] Speaker 01:
So are you suggesting that if I don't think this language is quite as clear as you would like me to think it is, because I don't think it's clear, that there's something in the specification that really makes it clear if there's any ambiguity in this language what it ought to be, show me what in the specification

[00:31:02] Speaker 01:
in particular, line and column number, you think is your best evidence for why that is?

[00:31:08] Speaker 02:
Certainly.

[00:31:20] Speaker 02:
I'd like to direct the court's attention, if I may, to page A37.

[00:31:25] Speaker 01:
I just have the patent, so tell me line and column number.

[00:31:28] Speaker 02:
Oh, OK, sure.

[00:31:29] Speaker 02:
Column seven.

[00:31:31] Speaker 02:
starting approximately around line 45.

[00:31:35] Speaker 02:
And the reason I want to start there is that we have to look at the structure and looking at it as a whole.

[00:31:41] Speaker 02:
And that structure, that paragraph starts talking about figure five and it is the microcontroller module.

[00:31:47] Speaker 02:
The microcontroller module around line 45, you see, it tells us that it's a standalone microprocessor and we see that it also has flash memory, an operating system, and application software.

[00:31:57] Speaker 02:
I believe the application software is significant.

[00:31:59] Speaker 02:
in that that is where we expect to find this software, this pre-configured software for the structure or the function to remotely pull.

[00:32:09] Speaker 01:
Reading down, the next paragraph talks about how you would insert... Is the dedicated Ethernet chip at 506 providing connection to the network, is that the structure you would say corresponds to the structure and the wherein clause that we're discussing?

[00:32:25] Speaker 02:
I'm not sure that that's correct.

[00:32:27] Speaker 01:
That's why I'm asking.

[00:32:28] Speaker 01:
I don't know.

[00:32:28] Speaker 02:
Yeah, I don't think that it is.

[00:32:30] Speaker 02:
I think the dedicated ethernet path would actually be the data communication path between what is in figure five.

[00:32:37] Speaker 04:
The ethernet chip is what is going to send stuff over the path.

[00:32:41] Speaker 02:
I think that it would be correct in that communication path.

[00:32:45] Speaker 02:
It may be the last chip.

[00:32:46] Speaker 04:
And then when you get down to line 62, is that what you're talking about?

[00:32:49] Speaker 02:
That's where I'm going next.

[00:32:50] Speaker 02:
Yes.

[00:32:51] Speaker 02:
And that's where we see.

[00:32:52] Speaker 02:
The very first thing after the preceding paragraph from 50 to around 61 about the insertion of it, the first thing that it tells us is, as you see, the microcontroller module uses a dedicated ethernet path separate from the network to remotely pull these three modules, the powered module, the ethernet switch module, and the CPU module.

[00:33:13] Speaker 02:
And then that language goes on to tell us the types of things that it is gathering, health information about the CPU.

[00:33:19] Speaker 02:
Now I'm into column eight and the first few lines in column eight.

[00:33:22] Speaker 02:
It also talks about voltage levels, CPU temperatures, fan RPMs.

[00:33:28] Speaker 02:
So there's various types of data that it goes out and asks these devices for and gets them.

[00:33:34] Speaker 02:
And then if you continue reading on in column 8, you will understand the reason it does this is so that it can maybe predict that this unit is not performing to the level that it's supposed to that could indicate a failure.

[00:33:46] Speaker 02:
And then you could alert someone and maybe something could be done about it with the hot swap ability.

[00:33:53] Speaker 02:
I think that would answer your question Judge Moore.

[00:33:56] Speaker 02:
That would speak to the issue that you asked.

[00:34:00] Speaker 01:
Well, certainly in this preferred embodiment, the microcontroller does this.

[00:34:06] Speaker 01:
Is there any other function of it disclosed in the patent anywhere?

[00:34:10] Speaker 02:
I don't recall any as I stand here today.

[00:34:11] Speaker 01:
So you really think that the only thing that is disclosed in this patent for the microcontroller is to do this remote calling?

[00:34:20] Speaker 02:
That's all I can recall at the moment.

[00:34:28] Speaker 01:
It just seems strange to me to read that function into an apparatus claim.

[00:34:33] Speaker 01:
I think that you're probably right under a Phillips standard, but it's a little harder for me under a BRI standard.

[00:34:41] Speaker 02:
And speaking to that point, I think that this reminds me of a NAISOMI, this court's decision, NAISOMI, where you have a combination hardware-software claim limitation, where you have the physical structure of the hardware, and then you have the software

[00:34:57] Speaker 02:
that is configured to perform the function.

[00:34:59] Speaker 02:
So if the court believes that it's just general capability, then perhaps I don't prevail on that.

[00:35:05] Speaker 02:
But if the court believes that it's something configured to perform that function, then I believe under NAISOMI that it certainly is part of the structure.

[00:35:14] Speaker 04:
Can you clarify for me?

[00:35:15] Speaker 04:
It seems to me you clearly oppose what I think was the board's view, is that as long as the path could carry,

[00:35:27] Speaker 04:
this communication about polling, then the claim is satisfied.

[00:35:33] Speaker 04:
It seems to me that there are two alternatives to that.

[00:35:37] Speaker 04:
One is that the system does actually conduct the polling, and then the other is I think what you're referring to as the microcontroller is configured to do so.

[00:35:50] Speaker 04:
Which of those two is your view?

[00:35:53] Speaker 04:
I think the board probably rejected both of them.

[00:35:55] Speaker 04:
But what is your view about the claim construction?

[00:36:00] Speaker 02:
We do believe that, I'm not sure I understood the first part of the two.

[00:36:03] Speaker 02:
The second part I certainly understand.

[00:36:05] Speaker 02:
And we do believe that the microcontroller module is configured to perform the function of polling.

[00:36:12] Speaker 02:
Would you repeat your first part again?

[00:36:14] Speaker 04:
So for example, if it said the microcontroller

[00:36:18] Speaker 04:
What's the language?

[00:36:19] Speaker 04:
Ethernet path provides a microcontroller module with a connection on which the microcontroller pulls the CPU module, et cetera.

[00:36:32] Speaker 04:
That would require that the microcontroller actually be doing something as opposed to configured to do it.

[00:36:41] Speaker 02:
Okay, I think I understand you.

[00:36:43] Speaker 02:
It is the latter that it is configured to poll as a position that we're at least trying to articulate, not the full.

[00:36:50] Speaker 02:
I see that I'm past my time.

[00:36:51] Speaker 02:
If there are any further questions?

[00:36:54] Speaker 01:
No, I think we have a case.

[00:36:56] Speaker 01:
Let's let her have some rebuttal time.

[00:37:00] Speaker 01:
Hyman, sorry.

[00:37:07] Speaker 00:
Thank you, your honor.

[00:37:08] Speaker 00:
I just want to address a couple of points first with respect to the board finding that HIP could pull with respect to claim 20.

[00:37:19] Speaker 00:
The reason why the board found that is that HIP actually does disclose polling.

[00:37:25] Speaker 00:
And those HIP at 14, lines 46 to 49, and that's on A466.

[00:37:34] Speaker 00:
discloses that the single-board computer collects, stores, and communicates information.

[00:37:39] Speaker 04:
It was column 14.

[00:37:40] Speaker 00:
What line?

[00:37:40] Speaker 00:
14, 46 through 49.

[00:37:43] Speaker 01:
Thanks.

[00:37:44] Speaker 00:
And also, in HIP, column 15 lines.

[00:37:48] Speaker 01:
Hold on.

[00:37:49] Speaker 01:
Go slower.

[00:37:50] Speaker 01:
I'll give you more time.

[00:37:50] Speaker 01:
Don't worry.

[00:37:51] Speaker 01:
Column 14.

[00:37:52] Speaker 01:
14.

[00:37:52] Speaker 00:
You want us to take away from this?

[00:37:54] Speaker 00:
Lines 46 to 49.

[00:37:57] Speaker 00:
Yes.

[00:37:57] Speaker 00:
The single-board computer collects, stores, and communicates information to send to

[00:38:04] Speaker 00:
the management network, and it's collecting information about the modules in the system.

[00:38:11] Speaker 01:
So you're saying it actually pulls?

[00:38:13] Speaker 01:
Correct.

[00:38:13] Speaker 01:
HIP actually pulls?

[00:38:15] Speaker 01:
Correct.

[00:38:17] Speaker 01:
And that's why the board found claim 20?

[00:38:19] Speaker 03:
The board found that... That's not the reasoning the board gave.

[00:38:25] Speaker 03:
The board found that it was capable of being programmed to do it.

[00:38:29] Speaker 03:
I mean, using the same reasoning you're trying to reject for the other claims.

[00:38:35] Speaker 03:
You're essentially arguing an alternative basis for us to affirm.

[00:38:40] Speaker 00:
Yes, Your Honor.

[00:38:41] Speaker 00:
We believe that HIP actually does disclose polling.

[00:38:46] Speaker 00:
And just one other site to give you lines 15, 24 to 30.

[00:38:50] Speaker 00:
15 lines 24 to 30?

[00:38:55] Speaker 04:
Yes.

[00:38:57] Speaker 04:
Oh, I see.

[00:39:00] Speaker 04:
That's the same thing.

[00:39:02] Speaker 04:
Telemetry data.

[00:39:04] Speaker 01:
Are there any other points you'd like to touch on quickly?

[00:39:07] Speaker 00:
Just very quickly for Claim 3, although we do not believe any rules were violated with respect to Claim 3, Aceleron did have an opportunity to respond to Dell's argument at the oral hearing.

[00:39:18] Speaker 00:
And also, there is a procedure to file a request for a rehearing to point out what the board overlooked or misinterpreted, which Aceleron did not do.

[00:39:28] Speaker 01:
OK.

[00:39:28] Speaker 01:
I thank both counsel for their argument.

[00:39:30] Speaker 01:
The case is taken under submission.