[00:00:00] Speaker 04: This morning is number 15, 1947, Intellectual Ventures LLC against Erickson, Incorporated. [00:00:08] Speaker 04: Mr. Picard. [00:00:11] Speaker 02: You're busy this week. [00:00:13] Speaker 01: I am. [00:00:14] Speaker 01: It's always a pleasure to be here. [00:00:16] Speaker 01: Good morning, and may it please the court. [00:00:18] Speaker 01: There are a number of errors in the board's final written decision, including that it applied the patentably distinct standard in deciding the anticipation issues and in shifting the burden [00:00:30] Speaker 01: to the patent owner on that same anticipation issue. [00:00:32] Speaker 03: Did they apply a standard or just use the language loosely? [00:00:39] Speaker 01: They did apply the standard, Your Honor. [00:00:40] Speaker 01: I think if you look to the seven factual findings that they recite at the end of their anticipation ruling, you'll see the repetition of the patently distinct language. [00:00:49] Speaker 01: And it's an essential finding in the board's anticipation conclusion. [00:00:54] Speaker 01: What I'd like to focus my time today on are two other errors, though. [00:00:58] Speaker 01: Whether substantial evidence supports the board's obviousness findings over the Rye reference and the copyright issues on Stadler. [00:01:05] Speaker 01: Cognizant of the fact that we need to win both on anticipation and on obviousness, I'd like to focus on what may appear to be the closer call, and I think that's the obviousness question. [00:01:14] Speaker 01: So if we look at the board's decision with respect to Rye, we have argued that it lacked substantial evidence for two elements. [00:01:21] Speaker 01: First, the determining element, and second, the second security protocol element. [00:01:26] Speaker 01: If we looked to the determining element, the language of the claims requires that the base station determine that the first packet is targeted at the target device. [00:01:38] Speaker 01: On this point, the board found that the Rye reference inherently discloses this element. [00:01:43] Speaker 01: If you look at A33 to A34, the board said, Erickson argues that the base station must make a determination that the packet is targeted at the end system in order to send the packet to the end system. [00:01:56] Speaker 01: concluding, we agree with Erickson on this point. [00:01:59] Speaker 01: And that tracks the argument that Erickson made in its reply papers, frankly, for the first time, which we submit would be a procedural error. [00:02:05] Speaker 01: But I think the salient point here is that when Erickson and the board rested their determination on the muss language, inherency, they set for themselves a very high burden. [00:02:16] Speaker 01: And Erickson did not present to the board below expert testimony, for instance, that would have met the inherency standard, which requires excluding other probabilities [00:02:26] Speaker 01: and possibilities. [00:02:28] Speaker 01: And because this issue was presented for the first time in Erickson's reply, Intellectual Ventures didn't have an opportunity to put in rebuttal evidence on this point. [00:02:37] Speaker 01: Had it, it would have put in evidence showing, for example, that the base station didn't need to target or determine whether the first packet was targeted. [00:02:46] Speaker 01: It could simply have broadcast the first packet. [00:02:49] Speaker 02: But was it really a question of them raising it for the first time in a reply? [00:02:53] Speaker 02: Didn't they raise it in their petition? [00:02:55] Speaker 01: They did not raise inherency in their petition. [00:02:58] Speaker 01: I think the more salient ones, the board lacked the necessary evidence to make an inherency finding on this record. [00:03:06] Speaker 01: All that was present below was that disclosure, single sentence disclosure, of Rye and Erickson's additional attorney argument. [00:03:14] Speaker 01: And even in its red brief here at page 44, Erickson again repeats that sort of syllogism, saying it's just a matter of logic. [00:03:23] Speaker 01: It's not a matter of logic. [00:03:26] Speaker 01: Erickson's counsel's intuition do not count in terms of meeting the inherency requirements. [00:03:32] Speaker 01: And instead of truly butting that point in their papers, they try to shift the issue to one of claim construction and say that, well, the claim is met just because there's a transmission in the Rye base station. [00:03:43] Speaker 01: But that would read out the determining language of the claims. [00:03:48] Speaker 01: We submit that that was a reversible error, sufficient in and of itself for this court to set aside the board's obviousness finding. [00:03:56] Speaker 01: turning to the second security protocol. [00:03:58] Speaker 04: But why was it an error to shift to claim construction and then come up with a construction that was contrary to your position? [00:04:07] Speaker 01: I apologize. [00:04:08] Speaker 01: That was not clear. [00:04:08] Speaker 01: So the board did not make a claim construction ruling below. [00:04:11] Speaker 01: They simply found inherency. [00:04:13] Speaker 02: Erickson and its... Did they really find inherency? [00:04:16] Speaker 02: I mean, the fact that they say it entails [00:04:18] Speaker 02: use of something. [00:04:19] Speaker 02: Does that really mean, is that really an inherency? [00:04:22] Speaker 01: I think your honor may be confused. [00:04:23] Speaker 01: The entails language comes in for the second security protocol element. [00:04:28] Speaker 01: The must language appears in the board's finding that the determining step was disclosed and right. [00:04:34] Speaker 01: And the board's language says Erickson argues that the base station must make a determination and it agreed with Erickson. [00:04:39] Speaker 01: That's exactly the inherency test. [00:04:42] Speaker 02: Well is it inherency or common sense? [00:04:44] Speaker 01: Well, it is inherency, and common sense cannot meet the standard, especially when you have a relatively complicated disclosure that you have in RIE. [00:04:53] Speaker 01: Common sense would be inconsistent with this court's case law. [00:04:57] Speaker 01: They need to put in expert witness testimony that would exclude other possibilities, and they simply didn't do that. [00:05:04] Speaker 01: Turning to the second issue of whether RIE disclosed a second security protocol, [00:05:12] Speaker 02: You know, I know you want to spend your time on this issue, but don't you have an issue with respect to the Stadler reference? [00:05:18] Speaker 02: Isn't that a more straightforward problem for you in the sense that if the board is correct across the board on that, you're going to lose a connection with the subpoena? [00:05:30] Speaker 01: You're honest correct. [00:05:30] Speaker 01: We need to prevail both on the obvious discussion and on Stadler. [00:05:33] Speaker 01: I'm happy to turn to that. [00:05:35] Speaker 01: There were two errors in the board's treatment of the copyright issues with respect to Stadler. [00:05:41] Speaker 01: First, the board looked to the copyright line in the Stadler reference itself and found that that copyright line in and of itself established that the Stadler reference was publicly available before the critical date. [00:05:56] Speaker 01: We submit that that's not consistent with this court's case law, for example, in Enri Lister. [00:06:00] Speaker 01: There is no evidence to support the public availability of Stadler in this case. [00:06:05] Speaker 03: If we don't agree with you, [00:06:08] Speaker 03: Did you raise below the question of Stadler, the time in 1998 when Stadler was published? [00:06:22] Speaker 03: After all, I believe your provisional application was filed in July 1998. [00:06:27] Speaker 03: Is that not raised? [00:06:34] Speaker 01: Let me see if I can. [00:06:35] Speaker 01: I think I understand your Honor's question. [00:06:36] Speaker 01: So Stadler has a copyright date. [00:06:38] Speaker 03: In other words, even if Stadler was a proper reference as of some time in 1998, maybe it was after the provisional application date. [00:06:49] Speaker 01: There was not an attempt to antedate our filing date, if you will. [00:06:54] Speaker 01: I think that answers your Honor's question. [00:06:55] Speaker 01: Answers, yes. [00:06:56] Speaker 01: OK. [00:06:57] Speaker 01: Turning back to the copyright issue, [00:07:00] Speaker 01: As a matter of law, it's not sufficient to establish that Stadler was publicly available. [00:07:04] Speaker 01: If you look to In re Lister, there the facts show that even the registration of a copyrighted work wasn't enough. [00:07:10] Speaker 01: In that case, the work was deposited at the Copyright Office. [00:07:14] Speaker 01: And the Lister opinion concludes and says you need something more. [00:07:16] Speaker 01: And it kind of gives a roadmap for proponents of evidence, like Erickson with the Stadler reference here, could have gone out and gotten evidence about what the IEEE standard practices were in the 1998 time frame. [00:07:28] Speaker 01: It could have obtained a librarian's declaration. [00:07:31] Speaker 01: and so on. [00:07:31] Speaker 01: They didn't do any of these things. [00:07:32] Speaker 01: And the law should not reward laziness, especially when we have at stake an important property right with respect to intellectual ventures. [00:07:39] Speaker 02: Well, if you've got something like the IEEE, I mean, it's pretty well known what it does and what its audience is, right? [00:07:49] Speaker 01: Well, I want to be precise with this. [00:07:51] Speaker 01: It is well known what the IEEE does. [00:07:52] Speaker 01: I submit to you, Your Honor, that it is not well known what the IEEE's practices are with respect to assigning copyright dates. [00:07:59] Speaker 01: and what kind of lag, if any, would attach to the actual public availability of particular references. [00:08:05] Speaker 01: Keeping in mind, the IEEE publishes many different kinds of papers. [00:08:09] Speaker 01: And I don't think there's any evidence or an ability for this court to take notice of what its practices are with respect to publishing particular kinds of references, let alone the particular reference of Stadler in this case. [00:08:22] Speaker 02: But on this point, it's an abusive discretionary view, is it not? [00:08:26] Speaker 01: Not on this point. [00:08:27] Speaker 01: It's an evidentiary principle. [00:08:29] Speaker 01: It is for the hearsay issues. [00:08:30] Speaker 01: It's an abuse of discretion. [00:08:32] Speaker 01: But the question whether the evidence, the copyright line of Stadler qualifies Stadler as prior art, that's a legal question with underlying factual determinations that are reviewed for substantial evidence. [00:08:44] Speaker 01: That's from the in-ray Lister case. [00:08:46] Speaker 01: So here, the only evidence is the copyright line. [00:08:49] Speaker 01: And the in-ray Lister directs the conclusion that that's not enough to establish that a paper was publicly available at the relevant time. [00:08:58] Speaker 01: As I said before, there's no librarians declaration, no evidence that this was indexed and available before the relevant time period. [00:09:04] Speaker 01: In fact, the only evidence that Erickson put in was a web printout from 2013 to show that perhaps it was possible to find it in the 2013 time frame. [00:09:14] Speaker 01: I do want to turn next to the evidentiary issues. [00:09:17] Speaker 01: There's no dispute in this case. [00:09:18] Speaker 02: Just let me go back for a second. [00:09:19] Speaker 02: I mean, Lister really was a totally unpublished manuscript, right? [00:09:25] Speaker 02: Well, there's a different opinion. [00:09:26] Speaker 02: very different factual scenario. [00:09:29] Speaker 01: I don't agree with that. [00:09:30] Speaker 01: So in Lister, you have the manuscript that was deposited at the Copyright Office. [00:09:34] Speaker 01: At some point, the Lexis and Westlaw databases indexed that paper. [00:09:39] Speaker 01: And the question there was when that happened. [00:09:41] Speaker 01: There was a two-year gap that was at issue. [00:09:43] Speaker 01: And I don't think the facts of Lister in terms of whether it was a publication is what really drove that decision, whether it was a manuscript versus [00:09:51] Speaker 01: conference papers we have here. [00:09:54] Speaker 01: The question is, was there evidence in the record that a skilled artisan could have found that reference to the reasonable efforts? [00:10:01] Speaker 01: And there's no evidence in this record that that's the case. [00:10:04] Speaker 01: Setting aside that issue, even if that evidence were sufficient, it's not admissible. [00:10:09] Speaker 01: There's no dispute here that the copyright line of the Stadler reference is hearsay, so the question resolves to whether [00:10:17] Speaker 01: an exception to that hearsay applies. [00:10:19] Speaker 01: And the board below found two applicable exceptions, the market report exception and the residual hearsay exception. [00:10:27] Speaker 01: Turning to the market report exception, the board erred in finding that applied. [00:10:31] Speaker 02: If you look to the language of... Why don't you go to the residual, because I think that market report is your better argument. [00:10:38] Speaker 02: So we got that part. [00:10:39] Speaker 01: Thank you, Your Honor. [00:10:40] Speaker 01: What about the residual? [00:10:41] Speaker 01: The residual hearsay exception. [00:10:42] Speaker 01: I think the most salient point with the residual hearsay exception [00:10:45] Speaker 01: is the third element. [00:10:46] Speaker 01: This is rule 807. [00:10:49] Speaker 01: And that third element requires a finding showing that more probative evidence on the point for which the established copyright line was offered couldn't be obtained through reasonable efforts. [00:11:01] Speaker 01: And here the board did two things. [00:11:02] Speaker 01: First, it didn't receive any evidence on that element. [00:11:04] Speaker 01: What it had was attorney argument by Erickson and the opposition to the motion to exclude. [00:11:10] Speaker 01: And the board just assumed that more probative evidence couldn't be found through reasonable efforts. [00:11:13] Speaker 01: There's no evidence about what those reasonable efforts might have been. [00:11:17] Speaker 01: And it went through, I think, frankly, a remarkable conclusion to say that a librarian's declaration would not have been more probative than the copyright line of the Stadler reference. [00:11:28] Speaker 01: So they don't meet that element. [00:11:30] Speaker 01: There also are no equivalent circumstantial guarantees of trustworthiness. [00:11:34] Speaker 01: The board essentially assumed that away in its analysis. [00:11:38] Speaker 01: And so there's two abusive discretion there. [00:11:40] Speaker 01: We submit that the board's analysis with respect to the residual hearsay exception was a clearly erroneous legal conclusion, and its conclusions rested on a record that had no evidentiary basis whatsoever. [00:11:51] Speaker 03: Let's move back a little bit. [00:11:52] Speaker 03: Maybe I've missed something. [00:11:53] Speaker 03: Why is this hearsay? [00:11:54] Speaker 03: It's a publication. [00:11:56] Speaker 01: The copyright line is hearsay because it was offered for the truth of the matter asserted. [00:12:01] Speaker 03: That is... Every publication that is publication has a date on it. [00:12:08] Speaker 01: I don't think that's true, but there are many publications with dates on them. [00:12:13] Speaker 01: And if we are to take that date as truth that it was published, in the words of the board, as of that date, then it's offered for the truth of the matter asserted. [00:12:22] Speaker 01: There's no dispute here that it was hearsay. [00:12:24] Speaker 01: Erickson has never taken that position in this appeal. [00:12:27] Speaker 01: Neither of the board's exceptions apply. [00:12:31] Speaker 01: Erickson offers a third alternative reason to allow the admission of the statement, the learned entreaties exception, [00:12:37] Speaker 02: And here again, if we look to the language of the- But let me go back to the residual. [00:12:41] Speaker 02: Here's the exception. [00:12:42] Speaker 02: Because isn't it true that it has to be probative? [00:12:48] Speaker 02: It doesn't necessarily have to be the most probative, does it? [00:12:51] Speaker 01: The language of the rules has to be more probative. [00:12:54] Speaker 01: So it doesn't have to be the most probative. [00:12:55] Speaker 02: But more probative than something that you could get without unreasonable effort. [00:13:03] Speaker 01: Right. [00:13:03] Speaker 01: There is a reasonable effort limitation on that. [00:13:06] Speaker 01: We submit that requiring a petitioner to go out and obtain something like a librarians declaration, approaching the IEEE to find out what its typical practices were, for example, in the 1998 time period, that would not have been unreasonable. [00:13:19] Speaker 01: I think it's important to keep in mind the procedure here. [00:13:22] Speaker 01: When Erickson files its petition, Intellectual Ventures can object to its evidence. [00:13:27] Speaker 01: It did that here and included with that objection it put Erickson on notice that this [00:13:33] Speaker 01: The public accessibility and the hearsay questions were very much in play. [00:13:36] Speaker 01: And Erickson had an opportunity to get curative evidence to put that in the record, and they simply didn't do so. [00:13:43] Speaker 01: They also have offered no evidence that would have been difficult for them to obtain the librarians' declaration. [00:13:47] Speaker 02: Assuming you're stuck with Stather, what's your best argument that it doesn't anticipate? [00:13:52] Speaker 01: Stather's on the wireless segment of Stather. [00:13:56] Speaker 01: Remember, we have a wired segment of the network. [00:13:59] Speaker 01: It was the first security protocol for the first packet there. [00:14:03] Speaker 01: In Stadler's wireless segment, it creates new packets called WLP packets. [00:14:08] Speaker 01: And the evidence in the record is that those packets have different payloads than what's on the wire segment. [00:14:14] Speaker 01: So therefore, it's no longer applying a second protocol to quote the first packet. [00:14:22] Speaker 01: I'm into my rebuttal time, so. [00:14:23] Speaker 04: Yes, we'll save your full rebuttal. [00:14:25] Speaker 04: Let's hear from the other side. [00:14:26] Speaker 01: Thank you. [00:14:36] Speaker 04: Mr. Matson. [00:14:39] Speaker 00: Yes, your honor. [00:14:39] Speaker 00: Good morning. [00:14:40] Speaker 00: May it please the court? [00:14:41] Speaker 00: I first want to clear up one thing about the filing date of the 674 patent. [00:14:48] Speaker 00: It's not entitled to its provisional date. [00:14:50] Speaker 00: It's only entitled to a filing date of July 1999. [00:14:55] Speaker 00: So there's no question over what month or what day the statular reference may have published. [00:15:02] Speaker 00: With respect to the Lister case, as far as the copyright goes, I think Judge O'Malley had it right that the Lister case doesn't have anything to do with the copyright date. [00:15:13] Speaker 00: And there, in fact, it was actually Dr. Lister who had submitted his own manuscript to the Copyright Office because he thought that would protect his invention. [00:15:21] Speaker 00: And that's consistent with all the cases that Intellectual Adventures has cited in its briefs, which is these are all cases where [00:15:30] Speaker 00: You don't have a reputable third-party publisher independently publishing the work of the author, which is the situation we have here. [00:15:39] Speaker 00: It is the IEEE. [00:15:41] Speaker 00: It is trustworthy. [00:15:42] Speaker 00: And in fact, its members that rely on IEEE publications are, in fact, the members of the scientific and technical community. [00:15:50] Speaker 02: Well, you agree that there's two different issues here. [00:15:54] Speaker 02: One is the admissibility under the evidentiary issue. [00:15:57] Speaker 02: But the second is whether or not [00:15:59] Speaker 02: it does show public availability. [00:16:02] Speaker 00: Right. [00:16:03] Speaker 00: As far as public availability goes, the date next to the copyright line is the first date of publication. [00:16:08] Speaker 00: That's what it's used for. [00:16:09] Speaker 00: And then next to that is the publisher's name. [00:16:11] Speaker 00: That's what the copyright date represents. [00:16:16] Speaker 00: And there's also the bibliographic information included with the Statler reference. [00:16:21] Speaker 00: And there's no dispute over authenticity. [00:16:22] Speaker 00: Everyone agrees, I think, that this is the [00:16:25] Speaker 00: an article from the proceedings of the 1998 Military Communications Conference. [00:16:32] Speaker 00: And the date of the conference would also corroborate the copyright date. [00:16:38] Speaker 00: But the copyright date by itself here, this is a third-party publisher that's reputable and people rely on these dates in the scientific and technical community to be able to ascribe the correct amount of significance to these publications. [00:16:52] Speaker 00: Would it have been so difficult to get [00:16:54] Speaker 02: to contact IEEE and actually get a declaration as to when it was published? [00:17:01] Speaker 00: Well, Your Honor, you might not be surprised to know that third parties rarely want to get involved in IPR proceedings or court proceedings. [00:17:09] Speaker 00: And even if you can get such a declaration, then there's going to be a deposition, and potentially, because that opens the door for the deposition. [00:17:18] Speaker 00: And I think here you have a case where [00:17:22] Speaker 00: The board is saying this is not reasonable to require a declaration from the IEEE when the IEEE has already said in its copyright line that it was published in 1998, which leads into the hearsay issue. [00:17:36] Speaker 02: It won't surprise you to find that, speaking only for me and not for my colleagues, that I think that some of your hearsay arguments are not great, but that your best argument has to do with the residual exception. [00:17:52] Speaker 02: But how do you deal with the prong that says it has to be more probative than alternative forms of evidence? [00:18:00] Speaker 00: Well, Your Honor, there's no better source to identify the date than the IEEE itself. [00:18:07] Speaker 00: If the IEEE says it was first published in 1998, then a librarian saying that it was published on a certain date isn't going to help you. [00:18:17] Speaker 00: Also, the board has to construe its own rules, which includes the federal rules of evidence, [00:18:21] Speaker 00: to secure the just, speedy, and inexpensive resolution of every proceeding. [00:18:26] Speaker 00: So not only is this review done under an abuse of discretion standard, but I think also the board-owned rules give it considerable leeway to determine what's reasonable and what's not in inter-parties review proceedings. [00:18:42] Speaker 00: The compilation, maybe in your Honor's opinion that is more difficult, [00:18:49] Speaker 00: This is an article from a compilation of, I think, at least 50 articles that went into the 1998 military communications proceedings. [00:19:02] Speaker 00: And it's also relied upon by the scientific and technical community, as the board pointed out. [00:19:09] Speaker 00: The board did not rely on the periodicals exception, Federal of Evidence 803, paragraph 18, [00:19:16] Speaker 00: But that would also be applicable for similar reasons. [00:19:22] Speaker 00: The key to all the federal evidence 803 exceptions is the reliability of the evidence. [00:19:27] Speaker 00: It doesn't matter if the declarant's available or not. [00:19:30] Speaker 00: And in some respects, this is a rule of convenience. [00:19:32] Speaker 00: It says when the source is reliable, that's the situation we have here, then you can meet one of these hearsay exceptions. [00:19:41] Speaker 00: Now, of course, intellectual ventures has the opportunity to marshal their own evidence and try to discredit the facts [00:19:49] Speaker 00: supporting the date. [00:19:51] Speaker 00: They could attack the date if they wanted. [00:19:55] Speaker 00: Well, it's your burden to show that there was publicly available priority. [00:20:00] Speaker 00: Right. [00:20:00] Speaker 00: And the fact that this was published, I don't even think that's an issue. [00:20:03] Speaker 00: It's just a matter of when it was published. [00:20:04] Speaker 00: And if the IEEE says it's 1998 on the copyright date, then that's something you can take to the bank. [00:20:12] Speaker 02: Something you can take to the bank. [00:20:13] Speaker 00: Is that what you said? [00:20:15] Speaker 00: It's reliable. [00:20:15] Speaker 00: And that's what the board said. [00:20:17] Speaker 00: Not take to the bank. [00:20:18] Speaker 02: I don't think that's the legal standard. [00:20:21] Speaker 00: No, but reliability is. [00:20:23] Speaker 00: And we can trust the IEEE to put the publication date, the correct publication date, on its own publications. [00:20:31] Speaker 02: OK. [00:20:32] Speaker 02: So assuming that you get past these basic issues, and we're working with Stadler, [00:20:38] Speaker 02: The determining step is the point that I think your friend on the other side said he thought is best argument as it relates to Statler. [00:20:46] Speaker 02: What's your response to that? [00:20:48] Speaker 00: Your Honor, determining was for the Ry-Davison combination. [00:20:51] Speaker 00: I think Council for Intellectual Ventures was talking about the packets, which I don't even believe that was an issue that they raised in their briefs. [00:21:05] Speaker 00: appeared to have conceded this in the briefs and they're trying to attack this issue on the technicality of the wrong burden of proof being applied, which is not the case here. [00:21:14] Speaker 00: There's a difference here than what you see in the Magnum Tools case where there's an improper burden shifting and here you've got the board just pointing out that counter arguments are inadequate. [00:21:27] Speaker 00: So I think what counsel for intellectual ventures was alluding to was the underlying issue on the burden of proof argument, which was whether the Statler reference is transforming or processing first packets. [00:21:43] Speaker 00: And this was addressed in numbered findings of fact by the board. [00:21:47] Speaker 00: They're actually enumerated in the decision. [00:21:49] Speaker 00: And finding of fact number three was that the 674 patent itself describes in the specification [00:21:56] Speaker 00: transforming first packets before wireless transmission. [00:22:00] Speaker 00: Statler, the prior reference of Statler, transforms first packets before wireless transmission. [00:22:07] Speaker 00: And what the question the board posed was how could the 674 patent claims cover what's in its own specification and not in Statler if they're doing the same thing in all relevant respects. [00:22:22] Speaker 00: But this underlying issue in the merits [00:22:24] Speaker 00: is not even an issue that's before the court here on appeal. [00:22:27] Speaker 00: It's more the technicality of whether the correct burden of proof was applied. [00:22:31] Speaker 00: Are you talking about his patently distinct language? [00:22:36] Speaker 00: Yes, Your Honor. [00:22:39] Speaker 00: And you could delete, the patently distinct term shows up twice in the board's opinion, once in analysis of what intellectual ventures experts said, and again, in the numbered findings of fact. [00:22:51] Speaker 00: You could delete both of those sentences, and you would still have findings of fact sufficient to support a conclusion of anticipation. [00:22:57] Speaker 00: It was pretty confusing for the board to use that language, wasn't it? [00:23:01] Speaker 00: I agree it's probably not the best choice of language, but like I said, you could just delete the sentences and you still have substantial evidence to support a finding of anticipation. [00:23:10] Speaker 02: So it's your position that what the board was really saying is that from a technological standpoint, they weren't different in any relevant or material way. [00:23:21] Speaker 00: Right. [00:23:21] Speaker 00: They were talking about the difference between what Statler teaches and what's disclosed in the 674 patent specification. [00:23:28] Speaker 00: The claims of the 674 patent are broad enough. [00:23:30] Speaker 00: It doesn't even get into that level of detail. [00:23:33] Speaker 00: But this was purely to address an argument that Intellectual Ventures had raised in its patent response and then was disposed of with this analysis of whether the 674 patent was really just doing the same thing that Statler was. [00:23:50] Speaker 00: An intellectual adventures expert was confronted with this at his deposition, and I believe most of the pages in the joint appendix are addressed to this exchange. [00:23:59] Speaker 00: And when he was asked to talk about figure 12B and whether that was similar to Statler, he said he didn't spend much time looking at that no. [00:24:08] Speaker 00: And then he was asked about whether there was one-to-one correspondence between the incoming and outgoing packets in the 674 patent. [00:24:16] Speaker 00: He wouldn't answer any of these questions, and this line of questioning culminates [00:24:21] Speaker 00: with him not even agreeing to say whether or not claim one reads on figure 17 of the patent, which is the figure that both parties relied on in describing the 674 invention in its briefs. [00:24:36] Speaker 02: Talk to me about whether the board erred in finding that Stahler anticipated the dependent claims, because I was a little confused about something relating to the two different encryption algorithms. [00:24:50] Speaker 02: Is it undisputed that IPSEC is not bulk encryption? [00:24:59] Speaker 00: I believe so, Your Honor. [00:25:00] Speaker 00: And this is what Dr. Newman, the expert for Ericsson, said. [00:25:05] Speaker 00: He said they use two different encryption algorithms. [00:25:08] Speaker 00: And if you look at the WEP, [00:25:11] Speaker 00: description that's in the joint appendix is actually specifically made for wireless communications. [00:25:18] Speaker 02: He did say that bulk encryption was preferred for wireless communications, but the [00:25:24] Speaker 02: But the other piece of it is the part that I was struggling to find, which is a clear statement that IPSEC is not bulk encryption. [00:25:32] Speaker 00: Right. [00:25:32] Speaker 00: And I just jumped ahead to Rai, too, with Webb. [00:25:34] Speaker 00: So yeah, this is the distinction between IPSEC and bulk encryption. [00:25:39] Speaker 00: IPSEC encryption is occurring on a packet-by-packet basis. [00:25:42] Speaker 00: It's a tunneling protocol that's used to encrypt IP packets. [00:25:46] Speaker 00: Bulk encryption, and Statler even describes this, [00:25:49] Speaker 00: is where you're encrypting all of the communications connections, all the TCP connections in parallel. [00:25:55] Speaker 02: OK, so the answer to my question, is it undisputed that IPSEC is not bulk encryption? [00:25:59] Speaker 02: You would say that answer would be yes. [00:26:02] Speaker 00: Yes. [00:26:03] Speaker 00: And Dr. Mikowski was asked about this at his deposition. [00:26:06] Speaker 00: And he, again, reiterated that they were different. [00:26:09] Speaker 00: In his deposition testimony, he said that IPSEC encrypts on a packet-by-packet basis. [00:26:19] Speaker 00: There's two different terms. [00:26:20] Speaker 00: The encryption technologies are being used on two different links. [00:26:24] Speaker 00: There's no question that they are different algorithms, and there's no evidence to the contrary. [00:26:29] Speaker 00: Intellectual Ventures is just resting its argument on the fact that we haven't disproved that they could be the same. [00:26:39] Speaker 04: Was it developed what the algorithms were, or is that deemed irrelevant? [00:26:44] Speaker 00: I believe that's deemed irrelevant, and the reason for that, Your Honor, is because the 674 patent itself doesn't even say what the second encryption algorithm is. [00:26:54] Speaker 00: It just presumes that whatever the encryption is on the wireless link is going to be different than the Ipsac encryption. [00:27:00] Speaker 00: The entire description of the second encryption step in the 674 patent is just a box in figure 17. [00:27:10] Speaker 00: It's just a functional box. [00:27:12] Speaker 00: So what Intellectual Adventures is doing is they're trying to hold the prior art, Statler, to a higher standard than what their impotence achieves. [00:27:19] Speaker 02: But Statler says that bulk encryption is preferred, but it never says that it's necessarily bulk encrypted, right? [00:27:26] Speaker 02: So by not saying what it is, it's difficult to be sure that they're different. [00:27:36] Speaker 00: Dr. Mikowski said that these are going to be different key spaces. [00:27:40] Speaker 00: He went into it when he was asked about it at his deposition that's in the joint appendix. [00:27:44] Speaker 00: He said for one thing you would have a different key space because you're encrypting different amounts of information at the same time. [00:27:52] Speaker 00: But I think the other thing to take into account, like I was saying, is that there is no description of any kind of algorithm, any particular algorithm in the [00:28:05] Speaker 00: in the 674 patent. [00:28:06] Speaker 00: And then what Statler says is, it's giving you two options. [00:28:09] Speaker 00: You could do it all-concription, or you could do it connection by connection. [00:28:12] Speaker 00: So it would actually anticipate either option. [00:28:15] Speaker 02: But the patent, at least, does expressly state that they must be different. [00:28:21] Speaker 02: Which, Statler, I see the argument, and I see what you're saying. [00:28:27] Speaker 02: But I guess their point would be, and I'm sure it will be, [00:28:32] Speaker 02: that there is an express statement that they must be different in one, in the patent, but not necessarily instead. [00:28:40] Speaker 00: Well, it may come down to what's meant by encryption algorithm. [00:28:44] Speaker 00: And I think any difference in the application of the encryption would be a different algorithm. [00:28:53] Speaker 00: We don't know exactly what a different algorithm means, because there's no algorithm described in the 6.7.4 specification. [00:29:00] Speaker 00: But the fact that you're [00:29:03] Speaker 00: encrypting on a connection-by-connection basis with IPSEC, and the fact that you're, as one option, you're encrypting all of the streams together, all the TCP connections together with bulk encryption, that alone is two different encryption algorithms. [00:29:18] Speaker 00: And Dr. Mikalsky, this is at Joint Appendix 2088, he says that they're different and that IPSEC is encrypting on a packet-by-packet basis. [00:29:35] Speaker 00: Briefly, Your Honor, I just want to touch on the Davison-Rye combination. [00:29:41] Speaker 00: There, again, IBSEC is the first encryption protocol, and WEP is the second encryption algorithm. [00:29:48] Speaker 00: And again, you have a IBSEC versus Wired Equivalent Privacy, and the WEP, Wired Equivalent Privacy, that is an encryption algorithm that is specific to wireless communications. [00:30:05] Speaker 00: The issue of determining with RY, we point to figure four in our brief that clearly shows that IP packets are coming into the wireless hub and they have to be delivered to access points and then on to the end user. [00:30:19] Speaker 00: This can't happen until an IP address has been established for the end systems. [00:30:24] Speaker 00: And the claim itself is very broad. [00:30:27] Speaker 00: The step is determining that the first packet is targeted at the target device. [00:30:31] Speaker 00: That doesn't even require that the priority has to show that the header information is even being used to perform the targeting. [00:30:38] Speaker 00: And as far as the delivering goes, the RIE reference actually distinguishes between broadcast communications and unicast communications, where you have to determine whether to forward the message on or not. [00:30:50] Speaker 00: That's at column 12. [00:30:53] Speaker 00: Lines 44 to 47, column 10, lines 55 through 57. [00:30:59] Speaker 04: Any more questions? [00:31:00] Speaker 04: Any more questions? [00:31:02] Speaker 04: Thank you, Mr. Matson. [00:31:03] Speaker 04: Thank you. [00:31:11] Speaker 04: Mr. Picard. [00:31:13] Speaker 01: Thank you. [00:31:17] Speaker 01: If I may, I'd like to turn back to the Stadler issue. [00:31:21] Speaker 01: My colleague said something interesting on the question of the residual hearsay exception. [00:31:26] Speaker 01: He said that IEEE is the most reliable source or something to that effect. [00:31:30] Speaker 01: And I think that's telling. [00:31:32] Speaker 01: The IEEE probably is the most probative evidence about when this was published, but not the copyright line that IEEE provided is. [00:31:39] Speaker 01: When did the IEEE disseminate this to the public, if ever? [00:31:43] Speaker 01: So step back. [00:31:44] Speaker 01: What is the copyright line's purpose? [00:31:47] Speaker 01: There's an assumption in the board's analysis and in my colleague's argument that the copyright line means [00:31:52] Speaker 01: It's the date it was published, i.e. [00:31:54] Speaker 01: made publicly accessible. [00:31:55] Speaker 04: Well, it's a public date. [00:31:57] Speaker 04: Was there any effort to establish the exact day, month and day, of the copyright? [00:32:06] Speaker 04: I would think that burden would be on the challenger. [00:32:10] Speaker 01: The challenger being Erickson in the case? [00:32:12] Speaker 04: No, the challenger of the copyright date. [00:32:15] Speaker 01: No, Your Honor, the burden in the IPR proceedings is on Erickson. [00:32:19] Speaker 01: They must establish that the copyright date [00:32:22] Speaker 01: or some other evidence establish the Stadler references as prior art. [00:32:26] Speaker 01: In fact, in Inray Stadler, this court addressed that issue. [00:32:29] Speaker 01: Is there a shifting burden? [00:32:31] Speaker 01: The government in Stadler attempted to say, well, we have a registered copyrighted work. [00:32:37] Speaker 01: And therefore, the burden shifted to Lister to disprove that. [00:32:41] Speaker 01: And this court rejected that kind of approach to dealing with these issues. [00:32:46] Speaker 02: But there's no doubt that there is [00:32:48] Speaker 02: But there's a date as to the Military Communications Conference, and there's no dispute that that conference occurred on that date, correct? [00:32:56] Speaker 01: I don't know what happened when that conference was held. [00:32:59] Speaker 01: Let's assume and stipulate that the conference was held in October of 1998. [00:33:02] Speaker 01: There's no evidence that the stat of the paper was presented or made available at that conference. [00:33:10] Speaker 01: That's point one. [00:33:11] Speaker 01: They're not arguing that the presentation of the paper at the conference establishes a prior. [00:33:15] Speaker 01: What they're arguing is that some subsequent [00:33:18] Speaker 01: the publication of this paper made it publicly available. [00:33:22] Speaker 01: The copyright date is not something to signify when a document was distributed to the public. [00:33:28] Speaker 01: Copyright protection attaches the moment work is reduced to tangible form. [00:33:33] Speaker 01: And we don't know in this case whether the IEEE provides a copyright date. [00:33:37] Speaker 01: For instance, is it the date that the work is received by the IEEE? [00:33:40] Speaker 01: Is it the date that the author submits it to the IEEE? [00:33:46] Speaker 01: Erickson and the board simply assumed that that date is a publication date, and there's no evidence to support that point. [00:33:53] Speaker 01: And for that reason, without substantial evidence, it was error for the board to treat that reference as prior art, and it was also error for the board to admit that evidence in the first instance. [00:34:03] Speaker 01: Without additional questions. [00:34:05] Speaker 04: Any more questions? [00:34:07] Speaker 01: Thank you. [00:34:08] Speaker 01: Thank you, Your Honors. [00:34:09] Speaker 04: Thank you, Mr. Picard. [00:34:10] Speaker 04: Thank you both. [00:34:11] Speaker 04: The case is taken under submission.