[00:00:29] Speaker ?: Mr. Buresh, please proceed. [00:00:44] Speaker 05: May it please the court. [00:00:45] Speaker 05: My name is Eric Buresh. [00:00:46] Speaker 05: I'm counsel for appellant in this matter with me is Michelle Marriott. [00:00:51] Speaker 05: There are a number of, I would say, a handful of errors that I believe the board committed in this particular proceeding. [00:00:57] Speaker 05: I'm going to focus on one today so that our time is more focused. [00:01:02] Speaker 05: I believe the court should reverse the patent trial and appeal board in this matter because the board imposed requirements on the challenge claims that have no predicate in the challenge claims. [00:01:15] Speaker 05: In its final written decision, the board focused almost exclusively on the question of whether the prior reference in Ohara disclosed [00:01:23] Speaker 05: A claim limitation I'm going to refer to as allowing the client to join a cash community from claim one and the corollary limitation from claim two, which is determining whether to allow a client to join a cash community. [00:01:37] Speaker 05: We posited to the board that Inohara disclosed these limitations by its activity related to a server group. [00:01:45] Speaker 05: The server group in Inohara is a bounded group within a cashing system. [00:01:51] Speaker 05: Bounded means that it has a maximum size and the disclosure of Inohara is very clear that when a server attempts to join a server group and that server group has is already at its maximum size, the new server attempting to join will be refused admittance to that server group and in the express words of Inohara a new group is formed. [00:02:14] Speaker 05: It's referred to as a new group in figure five. [00:02:17] Speaker 05: It is referred to as new groups repeatedly in column eight. [00:02:20] Speaker 03: So that's what the board and its institution decision found that it was likely that that would be their conclusion. [00:02:31] Speaker 03: But ultimately, though, they had a different view of what the caste community in Inuhara is, correct? [00:02:39] Speaker 05: Your Honor, that's correct. [00:02:40] Speaker 05: The board found what it referred to as, quote, the relevant cache community, and found that that was the cache hierarchy that was disclosed in Inohara. [00:02:52] Speaker 05: So Inohara has a couple of concepts. [00:02:54] Speaker 05: One is a server group that operates as a cache community, but it is part of a larger cache system that has numerous server groups. [00:03:03] Speaker 05: And those server groups are interconnected in what is called a hierarchy. [00:03:07] Speaker 05: So the server groups of Inohara do have a caching identity. [00:03:12] Speaker 05: And I think that's critical. [00:03:13] Speaker 05: And the board actually found that. [00:03:15] Speaker 05: One of the things in the board's construction that it looked for was whether there was identity or similarity. [00:03:22] Speaker 05: And in Inohara, you see a group table that specifically defines the contents of a server group. [00:03:27] Speaker 05: Not the contents, excuse me. [00:03:29] Speaker 05: The members of a server group. [00:03:31] Speaker 05: So the members of a server group share an identity by being grouped together in a group table. [00:03:37] Speaker 05: There is also the concept of a cache directory in Inohara. [00:03:40] Speaker 05: And that cache directory is specific to each server group. [00:03:44] Speaker 05: So every server group in Inohara has a cache directory. [00:03:47] Speaker 05: That provides a participation together as part of a caching entity. [00:03:53] Speaker 05: Now you see in the disclosure of Inohara, and we've laid this out in our brief, when new content, cached content, is received into a server group, the cache directory is updated and transmitted to the server group. [00:04:05] Speaker 05: When cached content is removed, [00:04:08] Speaker 05: from the server groups in Inohara. [00:04:13] Speaker 05: Again, a message is sent to the members of that group to remove the cache content from that particular cache directory. [00:04:20] Speaker 05: The caching entity in Inohara is the server group. [00:04:24] Speaker 05: But to the board's point, there is a broader system that operates overarching the server groups. [00:04:32] Speaker 05: We don't dispute that. [00:04:33] Speaker 03: But what the prior art shows is a question of fact, correct? [00:04:39] Speaker 05: What the prior art shows, sure, can be a question of fact. [00:04:43] Speaker 03: It's a question of fact. [00:04:44] Speaker 03: And the board found, based partially on some expert testimony, that the cash community in Ohara had to be the broader hierarchy. [00:04:56] Speaker 05: We need to look very specifically at what the board said, Your Honor. [00:04:59] Speaker 05: And that's specifically three pages of the final written decision. [00:05:03] Speaker 05: It is appendix pages 24 through 26. [00:05:07] Speaker 05: In those pages, and it's specifically appendix page 26, where the board talks about the fact that the hierarchy is what it calls the relevant cash community. [00:05:18] Speaker 05: And it is our position, your honor, that there is no limitation in the claims of the 145 patent that specify that there needs to be a relevant cash community. [00:05:28] Speaker 05: The claims of the 145 patent speak solely in terms of whether there is a decision to allow a client to join a cash community, not the relevant cash community. [00:05:37] Speaker 05: And I don't want to take anything away from the board, because clearly the relevant cash community is a phrase that you use, but we need to look at its underlying rationale. [00:05:47] Speaker 00: And if you- It seems like, why I'm going to be really simple-minded here. [00:05:52] Speaker 00: It seems like you're arguing that since you and your opposing counsel are both members of the community of people who are eligible to practice before the Federal Circuit, because you're members of the Federal Circuit Bar. [00:06:05] Speaker 00: You and opposing councils are members of this community to practice for the Federal Circuit Bar. [00:06:10] Speaker 00: It seems like your argument is that only two of you are present here, and thus you represent a unique community of two somehow by virtue of your shared traits as members of the Federal Circuit Bar. [00:06:23] Speaker 00: I don't understand that. [00:06:24] Speaker 00: If the community is of all members of the Federal Circuit Bar, the fact that there's just two of you here doesn't make you a separate community. [00:06:31] Speaker 00: And that's what I feel like you're up against, the logic that the board adopted [00:06:37] Speaker 00: clearly simplified by me here, oversimplified. [00:06:41] Speaker 00: Possibly you can tell me why that logic is wrong. [00:06:44] Speaker 05: Yeah, because other than the happenstance of us happening to be in the same room at the same time, my colleague and I don't share anything that makes us a unit. [00:06:54] Speaker 05: There is nothing other than our membership in the greater community of the Federal Circuit Bar that would cause my colleague and I to be a community. [00:07:02] Speaker 05: That's not an issue that the board had. [00:07:04] Speaker 05: The board recognized and agreed expressly [00:07:07] Speaker 05: that the server groups of Inohara were a community and it could not hold otherwise because the group table defines the server groups as a community. [00:07:17] Speaker 05: There's no question about that. [00:07:18] Speaker 03: Are you saying then there are two cache communities in Inohara? [00:07:23] Speaker 05: I'm saying that the server group is a cache community that satisfies the claim limitations of the 145-PAT. [00:07:29] Speaker 00: You have to be saying there's multiple cache communities in O'Hara. [00:07:31] Speaker 05: And that there can be larger cache communities. [00:07:33] Speaker 05: Now let's look at the 145-PAT. [00:07:35] Speaker 04: Why didn't you argue that even under the board's view of O'Hara as the entire thing being a cache community that it shows allowing somebody to join? [00:07:45] Speaker 05: Because the board built a negative limitation of the claim. [00:07:49] Speaker 05: I don't have a problem with that. [00:07:51] Speaker 05: What the board said is there has to be a lie. [00:07:52] Speaker 04: Why not? [00:07:53] Speaker 04: I mean, frankly, that seems like a really bizarre claim construction that allowing has to implicitly include the right to deny. [00:08:00] Speaker 04: But you didn't challenge that. [00:08:02] Speaker 04: And you're not challenging that today. [00:08:03] Speaker 05: I am not challenging that here today, Your Honor. [00:08:06] Speaker 05: But to answer your question, the hierarchy, if you want to call the hierarchy the cash community, [00:08:11] Speaker 05: Every server is allowed into the hierarchy. [00:08:13] Speaker 05: It's just not allowed into particular server groups. [00:08:16] Speaker 05: So that possibility of denial is at the server group level. [00:08:19] Speaker 05: But let's look at the 145 patent, because I think that the salient question, my point to begin with, is that the board imputed limitations into the claim that are not existent there. [00:08:28] Speaker 05: And that therefore they limited the broadest reasonable interpretation of the claims. [00:08:34] Speaker 05: If we look at the 145 patent, what are we going to find? [00:08:37] Speaker 05: We're going to find a caching system that has multiple communities in it. [00:08:44] Speaker 05: If a peer in terms of the 145 patent seeks to join a particular cash community in the terms of the 145 patent and is denied admittance to that cash community, what happens? [00:08:57] Speaker 05: Is it precluded from participating in caching? [00:09:00] Speaker 05: No. [00:09:01] Speaker 05: The peer in the 145 patent will either join a different cache community or it will form its own cache community, just like in Inohara. [00:09:10] Speaker 05: In the 145 patent, there is a broader caching system and there are multiple cache communities within the caching system. [00:09:18] Speaker 05: So to come back and say Inohara's server group cannot be the relevant cache community is to build one of two limitations into the claim. [00:09:28] Speaker 05: One, they're saying that a server, when it attempts to join, must be precluded altogether from a holistic caching community. [00:09:37] Speaker 05: And that is completely and directly inconsistent with the 145 patent. [00:09:42] Speaker 05: The other rationale that you see from the board, and this is on A25, the board stated, Inahara does not disclose limiting propagation of the cache directory to within a server group that forms the multicast hierarchy. [00:09:57] Speaker 05: In other words, the board was saying, there's nothing in Inohara. [00:10:01] Speaker 05: You petitioner have not shown the board that Inohara expressly says there's no cooperation within the server groups. [00:10:10] Speaker 05: That's not a requirement of the 145 patent. [00:10:12] Speaker 05: If we look at the 145 patent, there is no statement in that patent that the communities, the cash communities of the 145 patent, in which there are a plurality, do not participate together. [00:10:23] Speaker 05: There's no statement like that in the 145 patent. [00:10:27] Speaker 05: And I query, if that is a claim limitation, if there is a requirement that the server groups or the cache communities operate in complete isolation, why would there not be some statement to that effect in the 145 patent? [00:10:42] Speaker 05: But there is none. [00:10:46] Speaker 05: For both of these reasons, Your Honors, it is my position that the board imputed limitations to the claims of the 145 patent [00:10:57] Speaker 05: Unduly restricted those claims and then tested the prior art against those non-existent limitations That is a legal error subject to de novo review that should result in reversal of the board's decision here I'll reserve the remainder of my time for rebuttal. [00:11:12] Speaker 00: Okay. [00:11:13] Speaker 00: Thank you Mr.. Collins, please proceed [00:11:29] Speaker 02: Your honor, my name is Darren Collins, and I represent Appellate Networks. [00:11:36] Speaker 02: The appellant's contention in this case is the board committed a legal error. [00:11:39] Speaker 02: Our belief is, if you look at each of their arguments, it's the factual underpinnings of the board's conclusion that are issued here. [00:11:47] Speaker 02: And the appropriate standard in our cases is, in all cases, is one of substantial evidence. [00:11:52] Speaker 02: The board looked at the central teaching of an AHARA, which is a teaching of inclusion, [00:11:58] Speaker 02: It looked through each example in Inahara to determine if the specification ever taught that a server was denied entrance into a cache community, and they concluded in a negative. [00:12:08] Speaker 02: They looked at the expert testimony presented in this case, which includes roughly 20 pages of testimony from Dr. Thornton. [00:12:15] Speaker 02: as to the exact issue on this appeal. [00:12:18] Speaker 02: What does the combination of Minohara when taken in combination Smith teach to one of ordinary skill in the art? [00:12:24] Speaker 02: This is an application that was translated from a Japanese application admittedly some parts that are confusing and our purpose in the expert testimony of Dr. Thornton was to really look at in detail the teachings to one of ordinary skill in the art. [00:12:42] Speaker 02: Our position is that [00:12:43] Speaker 02: That testimony was never challenged. [00:12:45] Speaker 02: It was never questioned. [00:12:47] Speaker 02: It was never contradicted by the expert of Reloaded. [00:12:52] Speaker 02: His testimony said very little about the teachings of Inahara and balanced against the very considerable testimony and strong feelings of Dr. Thornton on the teachings of the combination of the references. [00:13:05] Speaker 02: The board clearly had substantial evidence to reach the conclusions that they did. [00:13:11] Speaker 03: Is it clear that the 145 would exclude or the 145 would exclude having more than one cash community? [00:13:24] Speaker 02: The 145 talks about being able to select between different cash communities based on effectively how much latency there would be and how long it would take to access content. [00:13:38] Speaker 02: So the 145 does teach selecting between different cache communities. [00:13:42] Speaker 02: Inahara doesn't. [00:13:43] Speaker 03: At the server group level, you don't think it does? [00:13:47] Speaker 02: On the server group level, no. [00:13:48] Speaker 02: Inahara's teaching is all of the existing prior cache architectures have size limitations. [00:13:56] Speaker 02: And that doesn't work for a large network like the internet. [00:13:59] Speaker 02: And that's really the central goal of Inahara. [00:14:02] Speaker 02: It expressly says that. [00:14:03] Speaker 02: Look, how do we construct a cache hierarchy [00:14:06] Speaker 02: that can be infinitely scalable and work for a very large network. [00:14:12] Speaker 02: And that doesn't work if you've got size limitations. [00:14:15] Speaker 02: So Inahara's primary teaching is, how do we construct a community into a hierarchy, and we're still able to communicate down all the communication needed to manage that hierarchy, and we still achieve the goals of a cache? [00:14:28] Speaker 02: And Dr. Porton talks about this. [00:14:29] Speaker 02: You want to reduce latency. [00:14:31] Speaker 02: You want to increase the hit rate on the cache content that you're asking for. [00:14:36] Speaker 02: and in our heart comes up with a structure that thinks does this and it's one hierarchy, it's one unified structure where you just when a new server comes on board [00:14:46] Speaker 02: It's not rejecting it or accepting it. [00:14:48] Speaker 02: It's figuring out where in the hierarchy it best fits so that it can manage communications efficiently. [00:14:54] Speaker 02: And Dr. Thornton talks about the big problem that Inahara overcomes, which is once you have a large number of servers and the architectures like Smith, for example, you have a lot of communications bandwidth. [00:15:05] Speaker 02: And that actually is counterproductive because it means you're going to get the content slower because of all the communications to manage the cache. [00:15:12] Speaker 02: So Inahara teaches this one hierarchical tree structure where communications are propagated from branch to branch, from group leader to group leader, to manage accessing cache and managing cache content. [00:15:26] Speaker 02: And if you look at Inahara, Inahara certainly could have taught separate cache communities. [00:15:33] Speaker 02: But it didn't. [00:15:34] Speaker 02: Its goal was entirely different. [00:15:36] Speaker 02: Its goal was to construct one unified community that works for a large network. [00:15:40] Speaker 02: And the server groups are building blocks of that network. [00:15:44] Speaker 02: They are contrivances to manage that communication. [00:15:47] Speaker 02: You're passing communications from one server group leader down to the next server group leader. [00:15:52] Speaker 02: It works exactly like the old telephone tree our PTA used to use when I was a kid in school. [00:15:57] Speaker 02: It's the head of the PTA calls five members of the PTA, and they call five more parents, and they each call five parents until the whole community is informed. [00:16:05] Speaker 02: It doesn't mean because I'm being called by Mr. Smith, [00:16:08] Speaker 02: And not Mr. Jones called Mr. Smith, and I'm not part of that community. [00:16:12] Speaker 02: It's a contrivance to make sure that we've got efficient communications. [00:16:16] Speaker 02: And the spec talks about that propagation of communications, including the cash directory across the servers. [00:16:22] Speaker 03: Is there a difference in the claims between the term cash community and community? [00:16:26] Speaker 02: No. [00:16:29] Speaker 02: And that's one of the arguments that's presented by Appellants Below. [00:16:32] Speaker 02: If you look at claims 29 through 34, I think it's very clear that the community in claim 29 is a cash community. [00:16:39] Speaker 02: You look at the preamble, which the board, that's the first thing the board went to when they started analyzing claim 29. [00:16:45] Speaker 02: It talks about distributed cash functionality that's performed by this process. [00:16:51] Speaker 02: Obviously, the board believed that meaning into the limitations of the claim. [00:16:56] Speaker 02: There's two other limitations of the claim that expressly talk about the functionality of that community being cashing. [00:17:03] Speaker 02: And in fact, it makes sense, because if you look at the teaching of 145, the only community 145 teaches about is a cash community. [00:17:12] Speaker 02: So I don't think you can restrict claim 29 to a community and argue that it's any different from a cash community. [00:17:17] Speaker 02: And even if you could, they didn't argue that. [00:17:19] Speaker 02: Below, there was no argument ever presented that if the board found that Inahara doesn't teach allowing a cash community, that nevertheless, because of additional arguments or analysis or evidence, the board should have found that a claim 29 was different. [00:17:32] Speaker 02: That's a new argument that was presented for the first time on appeal. [00:17:37] Speaker 00: I don't understand. [00:17:38] Speaker 00: Is your argument that communities have to be cash communities in Claim 29? [00:17:45] Speaker 02: Yes, in part. [00:17:46] Speaker 02: So Claim 29, the community of Claim 29 is clearly a community that accomplishes the functionality of cashing. [00:17:58] Speaker 02: And that's what the board looked at when it analyzed Claim 29. [00:18:02] Speaker 02: It recites five words from the preamble that expressly call out that cash functionality. [00:18:10] Speaker 00: Did the board? [00:18:11] Speaker 00: construe claim 29 the way you did? [00:18:13] Speaker 00: Because I didn't read the board's decision. [00:18:16] Speaker 02: To be clear, there was no emphasis in any of the underlying proceedings on claim 29 being any different from the other claims by appellant in terms of, hey, the community claim 29 is different from a cash community, and here's why. [00:18:29] Speaker 02: And here's why you should find that even if NLR doesn't teach allowing into a cash community, [00:18:34] Speaker 02: you should somehow teach that claim 29 doesn't allow, or Inohara teaches that it does allow a client to join a community. [00:18:42] Speaker 02: That argument was never presented by the board, or to the board. [00:18:46] Speaker 00: You say the argument was never presented to the board, but it seems to me, as I'm looking at the board's opinion right now, it clearly treated community in claim 29 different from cash community in the claim 2 group, and went through and discussed Inohara and whether it discloses a community list or not. [00:19:04] Speaker 00: And am I missing something? [00:19:06] Speaker 00: No, I think the board did separately. [00:19:07] Speaker 00: The board clearly treated it. [00:19:09] Speaker 02: They did consider the claim language of 29 separately, for sure. [00:19:13] Speaker 02: And they looked at communities and they said. [00:19:15] Speaker 02: Excuse me. [00:19:15] Speaker 00: Sorry. [00:19:16] Speaker 00: Nowhere did they say it's a cash community. [00:19:19] Speaker 00: Nowhere did they say the two limitations should be treated identically. [00:19:23] Speaker 00: Right? [00:19:23] Speaker 00: I mean, doesn't that make sense? [00:19:25] Speaker 00: I mean, if you say cash community in one claim, and in the next claim you just say community, I mean, claim differentiation principles would suggest [00:19:32] Speaker 00: that those two things have potentially different meanings. [00:19:36] Speaker 02: So I think in this case, there's a lot of differences between Claim 29 and the other claims. [00:19:41] Speaker 02: So I don't think you could make a strict judgment based on claim differentiation. [00:19:46] Speaker 02: The intended difference between those two claims was one was a community that was focused on caching, one wasn't. [00:19:52] Speaker 02: And again, if you look at the preamble for Claim 29, which recites a method for dynamic distributed data caching, [00:19:59] Speaker 02: And you look at the other elements of Claim 29, I don't think you can make that judgment. [00:20:03] Speaker 00: I'll be honest with you. [00:20:04] Speaker 00: I find the board's fact findings about what Inohara does or doesn't disclose regarding cash community and community lists to be nonsensical and somewhat internally inconsistent. [00:20:13] Speaker 00: I understand your argument, and you're making a great argument that attempts to infuse some logic into the board's decision by virtue of telling me they were really looking at this, like the term has the same meaning. [00:20:25] Speaker 00: It's just that they didn't find that anywhere. [00:20:27] Speaker 00: They didn't say that anywhere. [00:20:28] Speaker 00: I'm struggling with the board's decision. [00:20:31] Speaker 00: I'm not saying that means you lose. [00:20:33] Speaker 00: There are fact findings to be made here, and those fact findings were made by the board, and I've got to give them substantial evidence deference. [00:20:40] Speaker 00: But I am struggling with how I can [00:20:43] Speaker 00: Reconcile, they're fighting on 29 with their statements on 24. [00:20:47] Speaker 00: This is you know exactly what I'm talking about. [00:20:50] Speaker 00: You struggle with it, too. [00:20:50] Speaker 00: That's why we've tried to justify it on a different ground than what I can find anywhere in the board's decision. [00:20:56] Speaker 02: But I do think if you look at 824 to 826, which I do think are three very important pages of the board's decision, what they're really doing is they're undertaking [00:21:08] Speaker 02: They're trying to give credence to appellants arguments down the road and really look hard at, OK, here's a server group, and here's a unified cache hierarchy. [00:21:18] Speaker 02: How do both of those constructs in AHARA compare to a community? [00:21:23] Speaker 02: And they start with a server group. [00:21:25] Speaker 02: And they go through an analysis of the server group, and they look at, hey, how does this match up against the definition of community? [00:21:32] Speaker 02: And they say, there's one similarity here. [00:21:34] Speaker 02: They both have similarities in communications. [00:21:37] Speaker 02: But then they go on, and then the next page they talk about, if you look at what Inahara really is concerned about, it's really the overall hierarchy that's community. [00:21:47] Speaker 02: It's not an individual server group. [00:21:49] Speaker 02: And they don't expressly hold, as appellants say, that a server group is a community. [00:21:54] Speaker 02: They talk about that similarity, but it's only on the next page when they're talking about the hierarchy that they actually hold the community in Inahara is therefore the overall hierarchy. [00:22:08] Speaker 00: And I think the other thing that's important here... You don't think I should interpret the board on 26 and 27 as saying Inohara's server groups are communities? [00:22:21] Speaker 02: On which figure? [00:22:22] Speaker 00: 26 and 27. [00:22:23] Speaker 00: I'm sorry, that's the blue brick, 26, 27, A24. [00:22:28] Speaker 02: So, and there's two statements made, and I assume you're talking about the first one. [00:22:32] Speaker 02: Based on the complete record before us, we find that Inohara's server group has... Yeah, that's the one I have circled. [00:22:36] Speaker 02: Yeah. [00:22:36] Speaker 02: So, in my mind, and again, there is some lack of clarity there, but in my mind... They say, stop. [00:22:42] Speaker 00: We interpret community as similarity or identity or sharing participation. [00:22:45] Speaker 00: Based on the complete record before us, we find that Inohara's server group has similarity or identity or sharing of participation in fellowship. [00:22:52] Speaker 02: Right. [00:22:53] Speaker 02: I agree with that. [00:22:54] Speaker 02: So, completely agree, they found a similarity within server groups. [00:22:57] Speaker 00: And they found that that would satisfy the definition of community. [00:23:02] Speaker 02: I don't think they go that far. [00:23:03] Speaker 02: We interpret community as this. [00:23:06] Speaker 00: We find on the factual record this reference discloses the exact thing that's defined as community. [00:23:12] Speaker 02: Relative to one aspect of the community, which is communications. [00:23:17] Speaker 00: And I think that's important. [00:23:19] Speaker 00: Where do they? [00:23:21] Speaker 02: Pertaining to managing communications. [00:23:26] Speaker 00: Why? [00:23:28] Speaker 02: And on the next page, when they talk about the multicast. [00:23:32] Speaker 00: Why does that matter? [00:23:33] Speaker 00: I don't understand. [00:23:34] Speaker 02: Because in any community, there's a lot of similarities. [00:23:37] Speaker 02: So I had some similarities with everyone in this room. [00:23:41] Speaker 02: It doesn't mean that Inahara teaches that those similarities constitute a community. [00:23:47] Speaker 02: And in fact, if you look at the boundary, we spent some time talking about boundaries on appellants arguments. [00:23:53] Speaker 02: There's really no boundary between server groups. [00:23:57] Speaker 02: Contiguous server groups that are next to each other share members. [00:24:01] Speaker 02: They overlap. [00:24:02] Speaker 02: They overlap at a server group leader. [00:24:05] Speaker 02: And that server group leader, all it's doing is forwarding communications that come down the tree. [00:24:10] Speaker 02: So to argue that those two are separate communities because they have common characteristics, [00:24:17] Speaker 02: doesn't make sense, because the common characteristics that are shared within one server group are shared with the whole, even outside of that server group. [00:24:25] Speaker 00: But couldn't the problem with what you're arguing right now be that if you're just talking about a community, you and opposing counsel are all members of the community of folks who can practice before the Federal Circuit Bar. [00:24:40] Speaker 00: But the claim doesn't say, claim 29, cash community. [00:24:44] Speaker 00: It just says community. [00:24:45] Speaker 00: So why isn't enough? [00:24:47] Speaker 00: when the board finds Inohara's server group have similarity in communications, why do they also have to find anything related to caching at that point? [00:24:57] Speaker 02: Because I think if you look at the overall limitation and the overall teaching of Inohara, [00:25:05] Speaker 02: You might be right. [00:25:10] Speaker 00: The problem I'm having is that the board's opinion is sort of less than a model of clarity. [00:25:15] Speaker 00: I mean, everything you're saying makes logical sense to me. [00:25:17] Speaker 00: It really does. [00:25:18] Speaker 00: It's just that I'm struggling with what feels like a very [00:25:23] Speaker 00: poorly written. [00:25:24] Speaker 02: Sure, and I understand that, but I think at the end of the day, you know, what the board's decision came down to is what is the overall teaching of Inahara? [00:25:34] Speaker 02: And you've got Dr. Thornton testifying that someone picking up this reference and picking up Smith would not conclude, oh yes, Inahara and Smith, when you combine them together, that teaches limiting access to a cash meeting. [00:25:48] Speaker 02: They just wouldn't do that. [00:25:49] Speaker 02: You're taking a very thin [00:25:51] Speaker 02: Reading of one really one paragraph of one sentence of one figure and you're saying that should overcome in our broad teaching of Hey, we're going to take all comers We're never going to deny a server entering that past community and you only have one expert testifying on the factual circumstances here and [00:26:08] Speaker 02: If you look at an appellant's expert, they don't say anything on allowing a client to join a cash meeting relative to the teachings of Inahara. [00:26:15] Speaker 02: And then you've got another expert who has 20 pages of testimony saying, hey, I know this is a Japanese reference. [00:26:20] Speaker 02: I'm going to translate it for you. [00:26:22] Speaker 02: Here's the central teaching. [00:26:23] Speaker 02: And here's exactly what one ordinary skill in the art would come away with learning from that. [00:26:28] Speaker 02: I think I'm out of time here. [00:26:30] Speaker 00: Thank you. [00:26:30] Speaker 00: OK. [00:26:31] Speaker 00: Thank you. [00:26:32] Speaker 00: We have a little bit of rebuttal time left. [00:26:46] Speaker 05: Thank you, Your Honor. [00:26:48] Speaker 05: This is a claim scope dispute at its heart, and it goes to the 145 patent, and whether the claims of the 145 patent require that the cash community be an isolated cash community, or whether the claims of the 145 patent require the cash community to be the largest possible cash community you can identify. [00:27:09] Speaker 05: Those claims are not in the 145 patent, and they don't even make sense in the context of the 145 patent. [00:27:18] Speaker 05: My colleague talked about the principle of it. [00:27:20] Speaker 03: It is true, though, is it not, that you never argued to the board below that the community identified in claim 29 and its follow-on was anything other than a cash community? [00:27:34] Speaker 05: That is true. [00:27:35] Speaker 05: But, Your Honor, on claims 29 through 34 and 36, the problem with the board's analysis is that it did not have any analysis. [00:27:42] Speaker 05: It applied the same analysis from claims one and two, what we called claims at one. [00:27:47] Speaker 05: It applied that same analysis to Claim Set 2. [00:27:50] Speaker 03: If you look at Claims 29... You don't dispute that Claim 29, the community at issue there has to be a cash community, do you? [00:27:59] Speaker 05: I don't dispute in the context of the 145 patent that the communities are talking about are cash communities. [00:28:06] Speaker 05: Claims 29 through 34 do not even have the concept of allowing, which is what predicated the entire analysis by the board on claim set one. [00:28:15] Speaker 05: I mean, it's missing the entire limitation on which claims 29 through 34 and 36 are missing the entire limitation on which the board ruled with respect to the other claims. [00:28:24] Speaker 05: And then the board took that rationale and ported it over to another set of claims. [00:28:29] Speaker 05: It simply doesn't even have the same element. [00:28:31] Speaker 05: That's a big, big problem. [00:28:33] Speaker 05: The rationale simply doesn't apply. [00:28:35] Speaker 05: That's the problem with claims 29 through 34 and 36. [00:28:39] Speaker 05: But I want to direct the court's attention back to claim set one, because my colleague has again said this is a factual question. [00:28:49] Speaker 05: You don't hear me debating any factual issues about the disclosure of Inuhara. [00:28:54] Speaker 05: I will agree with the court, agree with my colleague, that there is a server group that is a community, and there is also a multi-cash hierarchy that can be viewed as a community as well. [00:29:05] Speaker 05: My contention is that the claim scope of the 145 patent does not render any of those facts problematic from an application of the prior art standpoint. [00:29:15] Speaker 05: There can be bigger communities. [00:29:17] Speaker 05: Look at the 145 patent, and I would refer the court specifically. [00:29:22] Speaker 03: What the board found was it had to be a cache community. [00:29:24] Speaker 03: So what they're saying is, yes, these servers might function as a community, but the cache community that we're talking about is the hierarchy. [00:29:32] Speaker 05: But the board also acknowledged that the server group of Inohara had a cache directory, and that that cache directory identified the cache content within the server group. [00:29:43] Speaker 05: That is a cashing community. [00:29:45] Speaker 05: And then the board said, but wait a minute, it's not the relevant cash community because there's a bigger picture hierarchy in play. [00:29:53] Speaker 05: That bigger picture hierarchy is irrelevant to the claims of the 145 patent. [00:29:59] Speaker 05: There's no factual disputes here, is my point. [00:30:02] Speaker 05: It's a legal dispute. [00:30:03] Speaker 05: And I want to direct the board to column 13, lines 33 through 36 of the 145 patent, which I think is the best example in the 145 patent. [00:30:13] Speaker 05: of two things. [00:30:14] Speaker 05: You see in this at column 13, lines 33 through 36, and this is to provide a little context, it's talking about a new client attempting to join a cash community in the 145 pad. [00:30:26] Speaker 05: It says if no communities are found or found communities do not allow cash module to join, then cash module may attempt to start its own cash community. [00:30:37] Speaker 05: Now, talk about the principle of inclusion, which is how my colleague described it in Inohara, because you can be rejected from a server group because a server group has a max limit, which is undisputed. [00:30:48] Speaker 05: You can be rejected from a server group but still join another community and be part of the hierarchy. [00:30:54] Speaker 05: In the 145 patent, if no communities are found or you're not allowed to join a community, you start your own community and you're part of the caching system. [00:31:03] Speaker 05: There is no requirement in the 145 patent that a server has to be rejected from the broadest cash community. [00:31:10] Speaker 05: As long as there is a rejection from a cash community period, you've satisfied the claim limitations. [00:31:17] Speaker 05: The 145 patent has a principle of inclusion. [00:31:21] Speaker 05: Just like in O'Hara, the points that my colleague has made and that the board adopted are points that are irrelevant within the proper scope of the claims of the 145 patent. [00:31:32] Speaker 05: Thank you, Your Honor. [00:31:33] Speaker 00: Okay, thank both counsel for the argument. [00:31:36] Speaker 00: The case is taken under submission.