[00:00:33] Speaker 04: And our final arguing case this morning is number 16-1416, Intellectual Ventures versus Compass Bank. [00:00:41] Speaker 04: Mr. Babcock, again. [00:00:43] Speaker 03: Good morning again, Your Honors. [00:00:45] Speaker 03: I have the privilege of working with you twice today. [00:00:51] Speaker 03: May it please the Court. [00:00:53] Speaker 03: This is a claim construction case. [00:00:56] Speaker 03: Three distinct claim construction errors, each of which alone requires reversal. [00:01:03] Speaker 03: The first claim construction error is with the term selecting. [00:01:07] Speaker 03: This is selecting an access rule. [00:01:11] Speaker 03: The second error is selecting the rule based on the contents of the packet. [00:01:17] Speaker 03: What is the contents of the packet? [00:01:19] Speaker 03: And then the third is the word implementing. [00:01:23] Speaker 04: With respect to the first of those, do you agree that Rubin [00:01:27] Speaker 04: shows three different strategies, and that it also shows combining those strategies. [00:01:34] Speaker 04: It doesn't show three different rules? [00:01:37] Speaker 04: No, no, no, no. [00:01:38] Speaker 04: I didn't ask you that. [00:01:39] Speaker 04: I said three different strategies, and it shows combining different strategies together. [00:01:43] Speaker 03: It shows three different strategies. [00:01:45] Speaker 03: It doesn't ever say that you can put them together and select from one. [00:01:51] Speaker 04: But it does show putting them together and using them together, right? [00:01:56] Speaker 03: No, I don't believe so. [00:01:57] Speaker 03: I believe it shows three distinct strategies. [00:02:01] Speaker 04: I think if you look at Rubin, that it pretty clearly shows that it contemplates using the strategies together. [00:02:10] Speaker 04: What page is Rubin at in the appendix? [00:02:17] Speaker 03: I think the arguments below, Your Honors, were that Rubin applied a single rule. [00:02:26] Speaker 03: That's what the record shows below. [00:02:27] Speaker 04: I think if you look at 183, 1183 for example, it shows Rubin suggesting combining these strategies, right? [00:02:38] Speaker 04: It says on page 1183 in the left column, it says combine with the applet blocker and the CA, FB, Bob, B blocker. [00:02:52] Speaker 04: It's a surprisingly complex and subtle piece of code, which [00:02:56] Speaker 04: shows combining the two strategies, right? [00:02:59] Speaker 03: I don't know, Your Honor. [00:03:01] Speaker 03: I'm relying upon what the evidence showed below. [00:03:06] Speaker 03: The argument below wasn't that Rubin selected one of three rules in a plan. [00:03:11] Speaker 04: You're not answering my question. [00:03:13] Speaker 04: Doesn't Rubin pretty clearly on its face show combining more than one strategy together? [00:03:20] Speaker 03: It may show combining strategies. [00:03:22] Speaker 03: It doesn't show selecting an access rule. [00:03:24] Speaker 03: I don't know, access rules are different than strategies. [00:03:27] Speaker 03: Blocking strategies are not the same as access rules. [00:03:29] Speaker 04: Well, but the board seems to think that that's exactly why it was anticipated or obvious over Rubin. [00:03:40] Speaker 03: Your Honor, the reason, with all respect, I believe the reason that it found that Rubin anticipates is because the board said that you don't need to select one from a plurality. [00:03:51] Speaker 03: As long as you apply a given rule, [00:03:54] Speaker 03: you satisfied the claim, meaning the claim term selected. [00:03:57] Speaker 04: I don't read the board's opinion that way. [00:04:01] Speaker 04: I read the board's opinion as saying, if you look at 26, where it's talking at the bottom of the page about Rubin, it talks about three blocking strategies, and each one is applied depending on the information. [00:04:15] Speaker 04: I think what they're saying is you've got three strategies, and Rubin picks the right one for blocking under a particular circumstance. [00:04:24] Speaker 03: That's not my reading of the opinion, Your Honor. [00:04:27] Speaker 03: My reading of the opinion is that the board said that... If my reading of the opinion were right, you'd lose, right? [00:04:33] Speaker 03: If Rubin selects an access rule from a plurality, yes, we would lose under our claim construction. [00:04:40] Speaker 03: The problem here is, Your Honor, that the board said our construction is wrong, that selection does not require selecting from a plurality. [00:04:48] Speaker 03: It only requires deciding whether or not to apply a single rule. [00:04:53] Speaker 03: That's not the ordinary meaning of selecting, and it's not consistent with the specification in this patent. [00:04:58] Speaker 03: This patent uses selecting throughout, and it never uses selecting for purposes of what the firewall does at the top, which is applying a rule. [00:05:07] Speaker 03: It only uses selecting in one context. [00:05:09] Speaker 04: Are you arguing that a strategy is not a rule? [00:05:13] Speaker 03: A blocking strategy is not a rule. [00:05:15] Speaker 03: Why not? [00:05:17] Speaker 03: we would have to go back and look at what the patent says but that was an issue below we didn't have to define rule or blocking strategy the point is you have to you have to still select one select one from many that there's they didn't even pick one strategy from the three there's no evidence that there's no evidence that rubin did that your honor you're not the the the panel didn't didn't reach that conclusion that that rubin selected one from a plurality that's not alternative holding they didn't say [00:05:47] Speaker 03: rubin under our construction applied a single rule here you're reading the board's opinion differently than i am unsupported a dangerous thing for me to do here for her that that's a bad position to be in maybe you should change your argument well your honor i i i think i think there's there's three issues here selecting cuts the packet and implementing i do believe the arguments below we look at the record below [00:06:16] Speaker 03: selecting required only applying a given rule given rule the board clear i think it's unequivocal how the board construed the rule the board made it very constrict to shoot the term the board made it very clear that selecting does not require selecting one from where i've selected this glass for drinking is that a problem how many are up there just this one [00:06:42] Speaker 03: And you're going to, that isn't, that's, you didn't select, if you, if you selected whether to drink, if you, if you want to, if you have one, a single card. [00:06:52] Speaker 01: Selected whether to drink and I selected the glass to drink from. [00:06:55] Speaker 03: You had, that's not an option. [00:06:57] Speaker 03: If you wanted to drink, what were your other options, your honor? [00:07:01] Speaker 03: That you didn't make a choice. [00:07:02] Speaker 03: Did you make it, if you want to drink, what are your choices? [00:07:06] Speaker 01: Well, you're assuming selecting implies a choice. [00:07:09] Speaker 03: The ordinary meaning of selecting implies a choice. [00:07:12] Speaker 03: We have the dictionary definition that the board put in the dictionary definition, and it says to choose one from many, from plurality. [00:07:20] Speaker 03: Normally, the normal meaning of selecting is if I have a plurality, I select one. [00:07:24] Speaker 03: If I'm going to salute the flag, I don't select which American flag in this courtroom to salute. [00:07:30] Speaker 03: There's only one. [00:07:31] Speaker 03: I'm not making a selection. [00:07:33] Speaker 03: So we start with the ordinary meaning, but I understand that this is [00:07:37] Speaker 03: Ordinary meaning, but you also have to do this construction line of specification. [00:07:42] Speaker 01: And there's no use of selecting or select in the specification that is consistent with only applying one... How much flexibility should we give them since they have the broadest reasonable interpretation authority? [00:07:59] Speaker 03: It's a de novo rule. [00:08:00] Speaker 03: It's a de novo issue, Your Honor. [00:08:02] Speaker 03: You don't give them any deference with respect to what is the plain construction of the word selecting. [00:08:07] Speaker 03: particularly when here they adopt a definition that's inconsistent with the ordinary meaning, and it's inconsistent with the specification. [00:08:14] Speaker 03: Now, I don't disagree that it's the broadest possible definition. [00:08:17] Speaker 03: It's possible the way you want to use it, the way the board want to use it to say selecting means choosing. [00:08:23] Speaker 01: But you think it's unreasonable. [00:08:25] Speaker 03: It's unreasonable, and it's not in light of the specification. [00:08:28] Speaker 03: Those are two requirements. [00:08:29] Speaker 03: It has to be reasonable in light of the specification. [00:08:31] Speaker 03: In addition, if you look at the claim itself, the claim says selecting an access rule, then what's the next thing you do? [00:08:36] Speaker 03: you implement the rule. [00:08:38] Speaker 03: Well, if the claim allows choosing not to apply a given rule, how do you implement that? [00:08:46] Speaker 03: You select a rule. [00:08:47] Speaker 03: The board says, well, that just means choosing whether or not to apply a rule. [00:08:51] Speaker 01: What do you want to say about implementing? [00:08:56] Speaker 03: So the ordinary meaning of implementing is to start something new. [00:09:02] Speaker 03: The example I used, I wore this tie at the board. [00:09:05] Speaker 03: And I said, if I walk into this building, the PTO, and there was a sign that said, no blue ties allowed. [00:09:15] Speaker 03: And the board kicked me out of the hearing room. [00:09:19] Speaker 03: They'd be applying a rule. [00:09:21] Speaker 03: They'd be applying a pre-existing rule. [00:09:23] Speaker 03: They wouldn't be implementing a rule. [00:09:25] Speaker 03: The implementing is when you implement a policy, implement something, implement a new strategy. [00:09:29] Speaker 03: So implementing in this context, if you look at how the patent is put together, [00:09:34] Speaker 04: They're not implementing a rule to exclude you? [00:09:38] Speaker 03: They're applying a rule. [00:09:39] Speaker 03: If they say, we're going to create a new rule, we're going to create a new rule, and we're going to implement that rule today, that's implementing. [00:09:49] Speaker 03: Implementing means to create a new rule and to apply it for the first time. [00:09:53] Speaker 02: Did you waive this argument? [00:09:55] Speaker 02: Pardon me? [00:09:56] Speaker 02: Was this argument waived? [00:09:57] Speaker 02: No. [00:09:58] Speaker 02: You raised it for the first time at the oral argument? [00:10:02] Speaker 03: That's not a waiver, Your Honor. [00:10:04] Speaker 03: We've seen many times where, in response to arguments made by the petitioner in the reply brief, the only opportunity that the patent owner has to address those new arguments and replies is either through a cert reply or an oral argument. [00:10:22] Speaker 03: And this court has, in fact, on at least a couple of occasions, said that's permissible for the board to consider issues that are raised and discussed [00:10:32] Speaker 03: And this is in response to the board's question. [00:10:34] Speaker 03: The board asked me specifically, what do you mean by implementing, Mr. Babcock? [00:10:39] Speaker 03: And I have 10 pages of transcript about what implementing means. [00:10:42] Speaker 03: And it's all in the joint appendix. [00:10:44] Speaker 03: So I don't believe that's a waiver, Your Honor. [00:10:45] Speaker 03: I think there the party's fully engaged in the meaning of this term. [00:10:51] Speaker 03: And we're able to explain to the board what implementing means. [00:10:54] Speaker 03: If you look at how the patent uses the term implementing, it never uses implementing with respect to [00:11:00] Speaker 03: the existing rules in the firewall. [00:11:01] Speaker 03: You have the figure one, you have the old firewall, which applies preloaded rules, and then if a preloaded rule doesn't apply, doesn't match, this is where the invention is. [00:11:12] Speaker 03: The invention is the proxy. [00:11:13] Speaker 03: You go down from the proxy, you go out, you select, select a new rule from a plurality, and you implement that rule. [00:11:21] Speaker 03: You take that rule, you load it into the system to now update the firewall. [00:11:27] Speaker 03: The board and Compass argue that this [00:11:30] Speaker 03: This patent is just over firewalls. [00:11:32] Speaker 03: If you have a firewall, you have some rules, you apply a rule, and you block a packet, you're done. [00:11:38] Speaker 03: The patent recognizes that that's old. [00:11:41] Speaker 03: Firewalls were old. [00:11:42] Speaker 03: This claim wasn't directed to old firewalls. [00:11:46] Speaker 03: It was directed to a new technology. [00:11:49] Speaker 03: it's not a complicated patent, you read through it and you understand when the board, when the patentee uses the words... You make a very good point, Mr. Babcock. [00:11:57] Speaker 01: It is not a complicated patent. [00:11:59] Speaker 03: You're using that against me, Your Honor. [00:12:01] Speaker 01: I assume that you are an experienced patent counsel, patent lawyer. [00:12:08] Speaker 01: I assume that at some time you probably did patent applications, patent drafting. [00:12:13] Speaker 01: In my younger years, Your Honor. [00:12:15] Speaker 01: In the two cases you brought to us this morning, [00:12:18] Speaker 01: They turn to some extent, either entirely or largely on problems of claim construction. [00:12:28] Speaker 01: I put to you this question. [00:12:30] Speaker 01: Do you think in these two cases, in these three or four instances, clearer claim drafting could have prevented your having to be up here and our having to listen to you? [00:12:46] Speaker 01: Is that possible? [00:12:47] Speaker 03: Well, I understand your sentiment, Your Honor, and I do believe that... It's not a sentiment. [00:12:51] Speaker 01: I asked you a question. [00:12:52] Speaker 01: Would it have been possible to have drafted these claims more clearly? [00:12:58] Speaker 01: Of course. [00:12:59] Speaker 01: I think every... If that's so, what burden, if any, should we put on the patentee, the claim drafter, for failing to have drafted clearly? [00:13:13] Speaker 01: That is to say, [00:13:14] Speaker 01: My background is more in contract law and real property law, and we have doctrines that say, you lose if you haven't said clearly enough what you think you want. [00:13:29] Speaker 01: I understand your... There's some Latin phrases, you've heard them all. [00:13:33] Speaker 01: Why shouldn't we [00:13:34] Speaker 01: come at you with that same thought. [00:13:36] Speaker 03: Well if there's true ambiguity, I guess I wouldn't have a fundamental problem with that type of doctrine. [00:13:41] Speaker 03: First of all, I don't know if it exists. [00:13:43] Speaker 03: I don't know that that's a patent law doctrine. [00:13:44] Speaker 03: But secondly, I don't think that's the situation here. [00:13:46] Speaker 03: I don't think we have a situation where the claims are ambiguous. [00:13:51] Speaker 03: I think that here the board's charge in your review is to look de novo and what is the ordinary meaning of these terms, what's the broadest reasonable interpretation, line of the spec, [00:14:02] Speaker 03: and here i don't think it's reasonable regardless of whether i could have said selecting one from many if you look at the specification and use every you use every time it says selecting use the word selector selecting it's always choosing one for many you look at the dictionary says choose one for many i don't think it's appropriate to say the patent owner the patent drafter was required to put in a much more complicated definition for the ordinary english word of select when i select [00:14:31] Speaker 03: actions one from a plurality are you making the argument that compass banks claims against you arguments against your frivolous they have no foundation because your claims are so clear is that what you're saying i i can say that you are because the pizza agree with them the pizza smart judges so guys they're not frivolous but i don't think i don't i don't think this is a situation where i have some extra burden because [00:15:01] Speaker 03: I'm the patent owner. [00:15:02] Speaker 03: That's always the... You drafted them. [00:15:05] Speaker 03: I understand. [00:15:06] Speaker 03: And they had to be clear. [00:15:07] Speaker 03: There's no 112-2 problem here. [00:15:09] Speaker 03: Selecting, I don't think there's a problem with what selecting means. [00:15:13] Speaker 03: It doesn't seem to me to be a complicated issue. [00:15:15] Speaker 03: I think here, if you have that rule in the defendants, I was going to say, or the petitioners, I was going to say, [00:15:21] Speaker 03: I don't know what the claim means. [00:15:23] Speaker 03: So therefore, it's up to the patent owner. [00:15:26] Speaker 03: He has the burden to make it clear. [00:15:28] Speaker 04: So that kind of hindsight analysis, which is in every patent dispute, you go back... We do know that patent applicants employ ambiguous language deliberately to avoid [00:15:43] Speaker 04: rigorous review and to be able to claim later on a broader claim, perhaps, than is clear on the face of it. [00:15:49] Speaker 03: Perhaps, Your Honor, but not in this case. [00:15:51] Speaker 03: Selecting an access rule, I don't know how much more simple and clear that can be. [00:15:57] Speaker 03: You select an access rule. [00:16:00] Speaker 03: If you have three chairs, you select which chair to sit in. [00:16:04] Speaker 03: If you have one, it's not a selection. [00:16:06] Speaker 03: You apply. [00:16:06] Speaker 03: You apply the rule. [00:16:07] Speaker 03: That's not the ordinary meaning. [00:16:09] Speaker 04: Okay, well I think we're out of time. [00:16:11] Speaker 04: We'll restore your rebuttal time. [00:16:12] Speaker 04: Thank you, Your Honors. [00:16:24] Speaker 00: Good morning, Your Honors. [00:16:26] Speaker 00: Please, the Court. [00:16:30] Speaker 00: My name is Jason Jackson, representing Compass Banks. [00:16:32] Speaker 00: You've got police in this case. [00:16:34] Speaker 00: Very briefly, [00:16:36] Speaker 00: As you know, the PTAB found claim one unpatentable on two grounds, anticipation by Rubin and obviousness in view of Norman and Rubin. [00:16:44] Speaker 00: The panel should have firm on both grounds. [00:16:46] Speaker 00: One of the issues the panel I think has been talking about today is the breadth of the claim. [00:16:50] Speaker 00: Claim one is just a pretty broad claim, and I think that's more not by the fact that in view of the prior art, it never should have issued. [00:16:58] Speaker 00: If you look at what the inventors thought they contributed to the state of the art, looking at the contents of multiple packets, [00:17:04] Speaker 00: I think Rubin and Norman clearly show that that predated the patent, that that was in the prior art. [00:17:11] Speaker 00: And it's also telling here, Your Honors, in this case, that there are really only three terms, important terms in this claim, the one claim, contents, selecting and implementing. [00:17:22] Speaker 00: And intellectual ventures are seeking to read limitations in using all three terms. [00:17:28] Speaker 00: And that is to save the claim over the prior art. [00:17:31] Speaker 00: I think this panel can very easily affirm [00:17:34] Speaker 00: on the basis of the Norman and Rubin combination. [00:17:39] Speaker 00: Intellectual ventures never argued in the papers below that the combination of Norman and Rubin fails to disclose the selecting and implementing terms. [00:17:48] Speaker 00: They simply didn't argue that with respect to the Norman reference. [00:17:53] Speaker 00: They challenged the combination of Norman and Rubin on three grounds. [00:17:57] Speaker 00: Contents of the packet, the references are not combinable, and that Rubin was not prior art. [00:18:03] Speaker 00: Well, they dropped the last two grounds on appeal. [00:18:05] Speaker 00: So the only issue this panel is left with regarding the combination is the contents term. [00:18:13] Speaker 00: And I think that this court can affirm the board under either party's construction of contents. [00:18:19] Speaker 00: First, IV does not dispute that the combination of Norman and Rubin discloses selecting contents under the petitioner's claim construction. [00:18:31] Speaker 00: As to IV's claim construction, [00:18:32] Speaker 00: header, and payload, substantial evidence exists showing that Norman and Rubin satisfy contents under their claim construction. [00:18:42] Speaker 00: So I think it's a very straightforward path, Your Honors, to affirming the board on the basis of the combination of Norman and Rubin. [00:18:48] Speaker 01: Well, you made the argument, if I understand it, petitioner proposes that the broadest reasonable construction of, quote, contents of the packet, unquote, [00:18:59] Speaker 01: is the contents of, quote, the header and or payload of the packet, unquote. [00:19:06] Speaker 01: And the board adopted that. [00:19:08] Speaker 01: That's a fatally defective construction. [00:19:12] Speaker 01: I'll tell you why. [00:19:13] Speaker 01: And slash or is fatally ambiguous because you can't have it both ways. [00:19:22] Speaker 01: And slash or, it's either and or it's or. [00:19:27] Speaker 01: Those are two very different meanings. [00:19:29] Speaker 01: So a statement that the contents of the header and slash or payload is fatally ambiguous. [00:19:37] Speaker 01: What are we to do with that? [00:19:39] Speaker 00: Your honor, I would respectfully disagree. [00:19:41] Speaker 00: I've seen claims in other cases that have had an or language in their claims first. [00:19:47] Speaker 00: Second, I think that is the construction that encompasses three ways that packets are chosen. [00:19:52] Speaker 00: Excuse me, access rules are selected in this patent by looking at headers, [00:19:57] Speaker 00: by looking at payloads and by looking at both or a combination of headers and payloads. [00:20:02] Speaker 00: I think the claim can be read very consistently. [00:20:05] Speaker 00: As? [00:20:06] Speaker 00: As. [00:20:06] Speaker 00: And or or? [00:20:10] Speaker 00: Which? [00:20:11] Speaker 00: Both. [00:20:12] Speaker 00: So one of the issues here is what is contents? [00:20:14] Speaker 00: Well, it can't be both. [00:20:16] Speaker 00: What it means, Your Honor, is that a rule, if it's header and payload, information can be taken from the header and the payload to select a rule. [00:20:25] Speaker 01: You may have meant the header or payload or both. [00:20:35] Speaker 01: Is that what you meant? [00:20:37] Speaker 00: I would agree that that's an equivalent. [00:20:39] Speaker 00: But that's not what you said, and that's not what the board said. [00:20:42] Speaker 00: Well, the board found persuasive the two embodiments of the specification that expressly talk about the access control proxy selecting a rule based on both the header and the payload. [00:20:55] Speaker 00: They also said, equivalently, selecting a rule based on a combination of the header and payload. [00:21:02] Speaker 00: And so that and, header and payload in our construction, encompasses those embodiments. [00:21:11] Speaker 01: You don't think we should rule it fatally defective? [00:21:15] Speaker 01: No, Your Honor, do not. [00:21:18] Speaker ?: OK. [00:21:26] Speaker 00: Continuing with my overview, Your Honors, I think it's very straightforward. [00:21:30] Speaker 00: The board can affirm on Norman and Rubin. [00:21:34] Speaker 00: The board can also affirm on the basis of Rubin alone. [00:21:39] Speaker 00: They argued contents for Rubin, and I think they also very vaguely did argue selecting. [00:21:46] Speaker 00: To be clear, we're not arguing that they waived arguing selecting with respect to the Rubin reference. [00:21:55] Speaker 00: Again, under the board's construction of contents, they don't dispute that Rubin looks at multiple packet payloads. [00:22:03] Speaker 00: Even under IV's proposed construction of header and payload, substantial evidence exists to support the board's conclusion there as well. [00:22:12] Speaker 00: And that's because in the case of Rubin, as well as in Norman, those references disclose not only looking at payloads, but looking at packet headers to perform the necessary work to reassemble packets [00:22:26] Speaker 00: put them in the correct order into reasonable packet fragments. [00:22:29] Speaker 00: Without those steps, the payloads simply don't make sense. [00:22:33] Speaker 00: And substantial evidence supports the board's conclusion as they talk about in the final written decision, that's the basis for the header and payload, where they held that Rubin anticipates and Norman and Rubin invalidate, even in view of Ivey's proposed construction. [00:22:54] Speaker 00: To refer to a couple of the points that counsel made that I'd like to address, first, regarding selecting, there are absolutely embodiments in the specification that we point out that only reference one access rule. [00:23:10] Speaker 00: The first you'll see is the summary of the invention, bottom of column one, start of column two. [00:23:15] Speaker 00: There's a reference to an embodiment that selects an access rule. [00:23:19] Speaker 00: Additionally, the JA44 [00:23:23] Speaker 00: At column two, lines 34 through 38, and 47 through 51, these sites are in our papers, they're embodiments that simply disclose selecting a role. [00:23:32] Speaker 00: Now, it is true, your honor, we've talked about this at the board and in the papers, there are embodiments that say selecting one role of many. [00:23:40] Speaker 00: Here's the fundamental problem with that argument. [00:23:42] Speaker 00: The inventors clearly had the words, they had the lexicon to say selecting one from many. [00:23:50] Speaker 00: They also had the lexicon [00:23:52] Speaker 00: to import other limitations into the claim, a proxy, which the oral argument counsel suggested was a limitation on the claim, dynamically loading rules, new rules. [00:24:02] Speaker 00: It's true that there are embodiments that contain all of these limitations, but that's the problem. [00:24:07] Speaker 00: The inventors had the lexicon. [00:24:08] Speaker 00: Those words simply don't appear in the claim. [00:24:10] Speaker 00: It's a very broad claim, and that's why we're here today. [00:24:12] Speaker 00: That's why Ivy has asserted this patent against a number of banks, including the banks represented in this proceeding. [00:24:24] Speaker 00: As to the waiver argument, we do believe that they waived, again, arguing implementing below. [00:24:31] Speaker 00: There's nothing in their expert report. [00:24:34] Speaker 00: There's nothing in their papers. [00:24:35] Speaker 00: If you look at the patent owner preliminary response, they only discuss one term, contents of the packet. [00:24:40] Speaker 00: They don't even discuss selecting. [00:24:41] Speaker 00: They don't discuss implementing. [00:24:44] Speaker 00: There's nothing about it in the patent owner full response either. [00:24:52] Speaker 00: To your previous point, Your Honor, Rubin does absolutely talk about combining its blocking strategies. [00:24:58] Speaker 00: That's at JA 1183. [00:24:59] Speaker 00: And also at JA 90, that's discussed, where Rubin suggests combining blocking strategies. [00:25:11] Speaker 00: And I know we can argue about is selecting a rule is indicating a rule [00:25:20] Speaker 00: I think if you step back and look at all the embodiments of this patent, it uses a couple of terms equivalently, indicating a rule, selecting a rule. [00:25:27] Speaker 00: It's all the same thing, Your Honors. [00:25:28] Speaker 00: These embodiments talk about picking an access rule. [00:25:32] Speaker 00: There's really no magic to selecting. [00:25:35] Speaker 00: And I would note for this panel that... Well, the problem is selecting one of one, isn't it? [00:25:45] Speaker 00: Intellectual adventurer's conception of this case, yes, but Your Honor, I think you're [00:25:48] Speaker 00: Your analogy with a drinking glass is perfect, perhaps another. [00:25:52] Speaker 01: If you have... I could have improved it by pointing out that there are other drinking glasses up here, but I can't reach them. [00:26:01] Speaker 01: And besides, which it wouldn't have been nice for me to take his drink. [00:26:05] Speaker 01: Now, is that still selecting? [00:26:07] Speaker 00: Yes. [00:26:07] Speaker 00: And in fact, your choice there, Your Honor, was to drink or to dive dehydration. [00:26:12] Speaker 00: You're absolutely making a choice. [00:26:13] Speaker 00: Your choosing is pertinent. [00:26:15] Speaker 00: Another good analogy is if you post an application for a job, [00:26:18] Speaker 00: If one person shows up and she's qualified for the job, you hire that person. [00:26:24] Speaker 00: That's absolutely making a selection. [00:26:26] Speaker 00: You're selecting a candidate. [00:26:28] Speaker 00: Sometimes one shows up. [00:26:30] Speaker 04: We don't have to reach that question, do we? [00:26:32] Speaker 04: I mean, at 27 and 28 of the board's opinion, it says Rubin describes three types of blocking strategies, and then it says, [00:26:41] Speaker 04: Each blocking strategy is applied based on information in the payloads, and Ruben thus describes selecting an access rule based on the payloads. [00:26:50] Speaker 04: So it's selecting one of the three strategies. [00:26:53] Speaker 04: Yes, I would agree, Your Honor. [00:26:55] Speaker 00: I would also like to point out, on the one hand, the board found that Ruben and Norman, individually in the combination, select headers and payloads, again, IVs construction. [00:27:07] Speaker 00: But we don't have to rely entirely on reassembling packets that may be fragmented or come out of order. [00:27:13] Speaker 00: If you look at the patent owner response, Intellectual Ventures makes very clear that every embodiment in this patent, every one of them, looks at payloads, looks at headers and payloads. [00:27:28] Speaker 00: The reason being that the packets first come through a firewall that inspects only header information. [00:27:36] Speaker 00: Every embodiment in this patent, they tell us, looks at headers and payloads. [00:27:40] Speaker 00: That supports their clamp construction, of course. [00:27:42] Speaker 00: But you'll also note that in Norman and Rubin, both of those systems clearly describe a conventional firewall that also looks at packet headers. [00:27:52] Speaker 00: So under their conception of the patent, Rubin and Norman also necessarily look at headers and payloads. [00:28:01] Speaker 00: Again, without relying on talking about segments and fragments and what have you. [00:28:10] Speaker 00: Anything further? [00:28:12] Speaker 00: I know, Your Honor, unless this panel has any further questions, we will. [00:28:15] Speaker 00: No questions. [00:28:16] Speaker 00: Thank you, Mr. Jackson. [00:28:17] Speaker 00: Mr. Babb, we've got three minutes now. [00:28:23] Speaker 03: Thank you, Your Honor. [00:28:24] Speaker 03: Just three final points. [00:28:26] Speaker 03: I think the selecting the glasses is a great example. [00:28:29] Speaker 03: And, Your Honor, if you chose not to drink, that's not selecting a glass. [00:28:34] Speaker 03: That's selecting whether to drink. [00:28:36] Speaker 03: The claim doesn't say select whether to apply a rule. [00:28:38] Speaker 03: It says select [00:28:40] Speaker 03: a rule. [00:28:41] Speaker 03: And then you have to implement the rule. [00:28:43] Speaker 03: If it's select whether to apply a rule, I totally get it. [00:28:47] Speaker 03: But that's not what the claim says. [00:28:48] Speaker 03: The claim says selecting a rule. [00:28:50] Speaker 03: I want to clarify a misstatement. [00:28:54] Speaker 03: I said if this court finds that Rubin does in fact select an access rule from a plurality under our proposed claim instruction, we lose. [00:29:05] Speaker 03: We lose on that point. [00:29:06] Speaker 03: We lose on that limitation. [00:29:08] Speaker 03: There's two other limitations that we've argued that are independent, and those also provide a reason for this court to reverse. [00:29:15] Speaker 03: We talked about selecting, talked about implementing. [00:29:18] Speaker 03: Contents of the packet. [00:29:20] Speaker 03: I think this is probably the most complicated of the three. [00:29:24] Speaker 03: I would refer to our briefs. [00:29:27] Speaker 03: I think on page 30 of our brief, we have a really nice Venn diagram. [00:29:32] Speaker 03: The reason this is a little more complicated is because [00:29:35] Speaker 03: This is a wherein clause that was added by amendment over the rejection by the examiner. [00:29:43] Speaker 03: I do think and or is fatally defective because it's fatally ambiguous, but it's just wrong. [00:29:51] Speaker 03: When the claim said originally, it said selecting based upon the contents of the payload of the packet, and the examiner said, that's too broad. [00:30:03] Speaker 03: But what you can do is you can select based on the contents of the packet. [00:30:08] Speaker 03: That's narrower. [00:30:09] Speaker 03: The only way contents of the packet could be narrower than contents of the payload of the packet is if it includes something else. [00:30:18] Speaker 03: The claim defines what the something else is. [00:30:20] Speaker 03: Claim limitation A says the packet contains a header and a payload. [00:30:25] Speaker 03: So contents of the packet is already defined as both. [00:30:28] Speaker 03: It was claim 15. [00:30:30] Speaker 03: It was a dependent claim. [00:30:32] Speaker 03: And it narrowed the claim by saying contents of the packet. [00:30:37] Speaker 03: And that contents of the packet had to be narrower. [00:30:39] Speaker 03: In fact, we looked at claim 26. [00:30:42] Speaker 03: Claim 26 said contents of two payloads. [00:30:47] Speaker 03: And the examiner said that's not patentable. [00:30:49] Speaker 03: What is patentable is contents of two packets. [00:30:52] Speaker 03: So I would encourage you to examine this limitation, not as the board. [00:30:59] Speaker 03: The board said it's an additional limitation. [00:31:01] Speaker 03: Look at what the board said. [00:31:02] Speaker 03: They said, well, you have contents of the payload of the packet received in A. And now we have another limitation, contents of the packets received by two other packets. [00:31:11] Speaker 03: That's not what this is. [00:31:12] Speaker 03: This is a where-in clause. [00:31:13] Speaker 03: It says the selection is made based upon the contents of the payload of the packet. [00:31:20] Speaker 03: Where-in? [00:31:20] Speaker 03: That selection is made based on the contents of the packet. [00:31:25] Speaker 03: The only way that claim makes sense under the patent law, under 112 paragraph 4, is if contents of the packet is narrower. [00:31:33] Speaker 03: the contents of the payload of the packet. [00:31:35] Speaker 03: It means it must include the header. [00:31:36] Speaker 04: Thank you, Mr. Aber. [00:31:37] Speaker 04: Thank you, Your Honors. [00:31:38] Speaker 04: Thank you, Your Counsel. [00:31:39] Speaker 04: The case is submitted. [00:31:40] Speaker 04: That concludes our session for today. [00:31:45] Speaker 01: All rise. [00:31:49] Speaker 01: The honorable court is adjourned until tomorrow morning at 10 o'clock.