[00:00:22] Speaker 04: And the next case will be secure access versus EMC and RSA security 2016 1354. [00:00:32] Speaker 04: And we'll hear from Mr. Wright again. [00:00:37] Speaker 04: You have secure access to the podium for 15 minutes. [00:00:46] Speaker 00: May it please the court. [00:00:48] Speaker 00: I'm going to be briefer now since we just addressed a lot of the claim construction issues in the last session. [00:00:55] Speaker 00: But I did want to point out just a couple of things. [00:00:58] Speaker 00: One of these we fleshed out in our brief was that we talk about the security of the preferences file and the importance of securing the file. [00:01:07] Speaker 00: And recall that we have two patents. [00:01:10] Speaker 00: There's our patent, the 191 patent, and the parent 838 patent. [00:01:13] Speaker 00: And those do this in different ways. [00:01:15] Speaker 00: The 838 patent, all of the claims require using [00:01:18] Speaker 00: a certain key to encrypt and decrypt the preferences file. [00:01:22] Speaker 00: All of the 191 patent claims talk about locating the preferences file. [00:01:27] Speaker 00: And we talked earlier in the last session about our view that locate in the context of the specification means to locate something that is hidden. [00:01:38] Speaker 00: Now, in terms of how the board's decision or how the board's construction affected its decision [00:01:46] Speaker 00: We think that's undeniable. [00:01:48] Speaker 00: If you read the board's analysis for how it went through and identified why it believed the patent claims were invalid in light of the prior art of record, it first of all recited a claim that it said was illustrative. [00:02:06] Speaker 00: This is appendix page six in the IPR appendix. [00:02:09] Speaker 00: It offered an illustrative claim and mentioned claim elements, but said nothing about the location of the preferences file elements. [00:02:16] Speaker 00: We think, for one, that totally eviscerates the idea that the preferences file needs to be secured. [00:02:24] Speaker 00: Also, when the board actually goes through its analysis of the independent claims in light of the prior art, they addressed at appendix 28 and 29, transforming at a host computer received data. [00:02:38] Speaker 00: Appendix 30 to 33, inserting an authenticity key. [00:02:42] Speaker 00: Appendix 33 to 36, [00:02:44] Speaker 00: retrieving an authenticity stamp from a preferences file. [00:02:47] Speaker 00: There's no discussion of the intervening elements of the authenticity key locating or enabling location of the preferences file. [00:02:56] Speaker 00: So they're treating locating the preferences file the same way as retrieving the preferences file. [00:03:03] Speaker 00: Well, the patent separately uses the terms retrieve and locate. [00:03:07] Speaker 00: And this court's precedent tells us that when different claim terms are used, [00:03:12] Speaker 00: They're presumed to mean different things. [00:03:14] Speaker 00: Our suggestion here is that locate means locate a file whose storage location, for lack of a better term, is not known without additional data. [00:03:29] Speaker 00: In the IPR in particular, the board relied on dictionary deposition. [00:03:33] Speaker 03: What does hidden mean in your proposed construction? [00:03:38] Speaker 00: Hidden would mean that the location of the file. [00:03:41] Speaker 03: If I go to one of these public storage places, I have to locate locker 637. [00:03:45] Speaker 03: So I still actually have to go locate it, but I'm going to guess it's not hidden in some sense. [00:03:52] Speaker 03: And so I started thinking, what is the sense in which you were asking the board to construe the claim? [00:03:59] Speaker 00: We're asking that hidden mean that there has to be other information that you were given before you can locate that in your [00:04:07] Speaker 00: particular analogy, I think you said locker 636 or something. [00:04:13] Speaker 00: You have that information. [00:04:14] Speaker 03: Sometimes you need one of these maps, like a treasure hunt, how many times you turn left and right. [00:04:20] Speaker 00: Exactly. [00:04:20] Speaker 00: You may have a map, you may have a locker number. [00:04:22] Speaker 00: The example from the briefing was locating a term in a dictionary. [00:04:26] Speaker 00: First of all, that's [00:04:28] Speaker 00: That's not locate as it's used in the patent. [00:04:31] Speaker 00: But if you're locating a term in a dictionary, as we mentioned, you have certain context. [00:04:36] Speaker 00: You know how thick the dictionary is. [00:04:38] Speaker 00: You know it's in alphabetical order. [00:04:39] Speaker 00: You know that if you're looking for a term that starts with M, it's going to be roughly in the middle. [00:04:45] Speaker 00: So you have information ahead of time that you can use to find the location. [00:04:51] Speaker 00: That's what we mean by hidden there, is that it requires additional information before you can locate the file. [00:04:57] Speaker 00: And for instance, this supports the dictionary definition. [00:05:01] Speaker 00: The board's definition to one of the dictionaries on Appendix 689, another acceptable definition for locate there, was to find or fix the place up, especially in a sequence. [00:05:14] Speaker 00: So that supports our idea on the dictionary. [00:05:20] Speaker 00: The prior art of record did not disclose. [00:05:23] Speaker 00: There was no suggestion or allegation that it disclosed. [00:05:26] Speaker 00: a hidden preferences file. [00:05:28] Speaker 00: And so there was no basis if the court had applied that construction to invalidate the claims based on the prior art of record. [00:05:38] Speaker 00: I know we've gone on a lot of these issues in the last session. [00:05:42] Speaker 00: I'm happy to answer any questions the board has. [00:05:44] Speaker 00: Otherwise, I believe our discussion during the CBM discussion applies here. [00:05:50] Speaker 00: I'm happy to respond in my rebuttal time to any additional points. [00:05:56] Speaker 04: Thank you, Mr. Wright. [00:05:58] Speaker 04: We will save you nearly 10 minutes if you need it. [00:06:02] Speaker 04: Mr. Lee. [00:06:04] Speaker 01: Thank you, Your Honor. [00:06:04] Speaker 01: May it please the court, my name is Bill Lee, and together with my partner, Sidney Freeland, I represent DMC. [00:06:11] Speaker 01: Let me go to two predicates that I think were just offered to the panel. [00:06:15] Speaker 01: The first is that this patent is about the security of the preferences file. [00:06:21] Speaker 01: There were references in the last argument to the abstract, the summary of the invention, the background of the invention, and the detailed embodiments. [00:06:31] Speaker 01: None of that is about the security of the preferences file. [00:06:35] Speaker 01: None of it at all. [00:06:37] Speaker 01: That is an attempt at justification for the claim interpretation issue that's been offered to you, which is that the preferences file must be hidden. [00:06:47] Speaker 01: And that is core to the argument. [00:06:50] Speaker 01: I'm not sure I completely understand the argument in reply, but I think the argument is something along the lines of, because the preference of file is hidden, the authenticity key must locate it or enable its location. [00:07:03] Speaker 01: Both of those predicates are wrong as a matter of claim interpretation. [00:07:07] Speaker 01: And this is that rare case where we think the terms of the claim, the only disclosed embodiments of the specification, and helpfully, the testimony of both experts. [00:07:19] Speaker 01: on both sides is consistent. [00:07:21] Speaker 01: So if we move to that hidden concept, which is what was just discussed with the court, the claims don't refer to a hidden preferences file. [00:07:30] Speaker 01: In fact, the specification discloses files that are not readily known or obscured, and I'll come back to them, but also encrypted files. [00:07:40] Speaker 01: And our expert and their expert, Dr. Katz, conceded that those are not hidden. [00:07:46] Speaker 01: They're encrypted, which is a different form of security. [00:07:49] Speaker 01: But they're not hidden in any way. [00:07:52] Speaker 01: So the argument that's being made to you about that. [00:07:55] Speaker 03: Can I just understand? [00:07:56] Speaker 03: Sure. [00:07:57] Speaker 03: And this maybe is a question more about what they mean. [00:08:00] Speaker 03: But I guess the question is, what is a question about what they explained hidden is? [00:08:04] Speaker 03: In some sense, an encrypted file is hidden. [00:08:07] Speaker 03: Not where it is, but everything except its shell is hidden in some sense. [00:08:12] Speaker 03: Is that what they meant, or were they meaning to exclude [00:08:16] Speaker 03: There is a file. [00:08:18] Speaker 03: I have no idea what's in it. [00:08:19] Speaker 03: So it's a meaningless, except that it says file on top of it. [00:08:22] Speaker 01: They can't answer, Your Honor, as I don't know. [00:08:24] Speaker 01: But since they're tying everything to locate, maybe the best way I could do it is by looking at what the specification in fact says and what I think that they are now saying. [00:08:35] Speaker 01: So the specification does say that there are embodiments where the file is not regular. [00:08:41] Speaker 01: The location of the file is not readily known. [00:08:43] Speaker 01: So that would be that spot on the wall. [00:08:46] Speaker 01: is obscured. [00:08:49] Speaker 01: That also could be that spot on the wall with the curtain in front of it. [00:08:53] Speaker 01: The encrypted file, which their own expert admits is not hidden, its location is not obscured in any way, its location is readily known as opposed to not readily known, has a different type of security. [00:09:04] Speaker 01: It's encrypted, but it's not hidden in any way. [00:09:09] Speaker 01: And I think that that disclosure, which discloses multiple embodiments, [00:09:14] Speaker 01: Some of them where the location may not be readily known, and I want to come back to that just for a second, some of which may be encrypted, where both experts admit that those of ordinary skill merit would understand those not to be hidden should be dispositive of the claim interpretation issue. [00:09:32] Speaker 01: Now, to go to the not readily known or the obscured, something can be not readily known and not be hidden. [00:09:42] Speaker 01: Ms. [00:09:42] Speaker 01: Rieland's home address, [00:09:44] Speaker 01: I don't know, but it's readily ascertainable. [00:09:47] Speaker 01: And the directions to get there once I have her address are readily ascertainable. [00:09:52] Speaker 01: That is what's described in the specification. [00:09:56] Speaker 01: There's no requirement that the preferences file be hidden, nor is there any requirement that there be some sort of security on the preferences file in order for the claim to be satisfied. [00:10:13] Speaker 01: The other predicated argument, which I think I understand, which is because the preference file is hidden, which we think is incorrect, the authentication came us located. [00:10:25] Speaker 01: It's like two thoughts that are tied together, but they don't logically tie together. [00:10:30] Speaker 01: It's almost as if I were to say, today is Wednesday, so tomorrow will be 6 foot 2. [00:10:35] Speaker 01: They're completely unrelated. [00:10:38] Speaker 01: whether the preference is fine. [00:10:40] Speaker 03: I'm not sure the problem with that example is that they're unrelated. [00:10:43] Speaker 03: They're logically, well, the second is logically impossible. [00:10:48] Speaker 01: Actually, I think I can show you that the first may be logically impossible, too, because the second predicate of their argument that the authenticity key must, and I'm not sure if I'm articulating it correctly, [00:11:03] Speaker 01: Below it was the authenticity key must provide the ability to locate the preferences file. [00:11:10] Speaker 01: The argument now appears to be that the authenticity key must either directly locate or enable, and it's an or. [00:11:18] Speaker 01: The board found the requirement to be enabling. [00:11:22] Speaker 01: We agree that the requirement is enabling. [00:11:24] Speaker 01: Both experts agree that the requirement is enabling. [00:11:30] Speaker 01: the record is clear that both the Tiger and Aaron references enable. [00:11:34] Speaker 01: So both predicates of the argument, we suggest, are incorrect as a matter of law. [00:11:39] Speaker 01: To go to the last point that Secure Access made, which is this idea that there's a separate locate and retrieve, and the board failed to recognize that, I think that's just incorrect as a matter of fact. [00:11:53] Speaker 01: What the board said in its opinion after between pages 15 and 21, the board [00:11:59] Speaker 01: described why files didn't need to be hidden, why the preferences key, as opposed to the authentication key, locates the preferences file. [00:12:11] Speaker 01: Then it got at pages A37 and A55 to the question of locate. [00:12:17] Speaker 01: And it said really two things. [00:12:20] Speaker 01: It said that there is evidence in the record that both prior references locate the preferences file. [00:12:29] Speaker 01: and then retrieve the authenticity stamp. [00:12:32] Speaker 01: And as a matter of fact, that's true. [00:12:35] Speaker 01: And they cited specifically Dr. Tiger's testimony at A265 and A228 and 29, where he said, as a matter of logic and fact, one of the ordinary skill in the art would understand that if you're going to retrieve something from a file, you have to locate it first. [00:12:54] Speaker 01: And what Dr. Tiger said in both circumstances is you have to [00:12:59] Speaker 01: Once the authentication has occurred, you locate the file, you retrieve the stamp. [00:13:05] Speaker 01: And that is consistent with the only disclosed embodiment, which is figure five of the patent. [00:13:11] Speaker 01: And in that figure five of the patent, what happens is there's an authentication process. [00:13:18] Speaker 01: After the authentication process has occurred, a preferences key is sent to the user, preference key is used to [00:13:27] Speaker 01: locate the preferences file, you obtain the authenticity stamp, and then you put it on the screen just as Aaron and Tiger did. [00:13:36] Speaker 03: So we suggest that the PCAT... Just to make sure I understand what... Tell me if my understanding is wrong. [00:13:43] Speaker 03: I understand what the board said about it has to be a precondition is that the authentication key [00:13:51] Speaker 03: is what allows you to proceed to a next routine, but the authentication key does not then play a role in the performance of the routine to find the preference key. [00:14:01] Speaker 01: I think 98% correct. [00:14:04] Speaker 01: The only place I would change it is that the authentication key does not necessarily have to play a role. [00:14:10] Speaker 01: I don't think that the board said that... It's not required. [00:14:12] Speaker 01: They're just saying that it's not required. [00:14:15] Speaker 01: And what the board said is if you look at Figure 5, [00:14:18] Speaker 01: You'll see that at line 185, the request for the preference key comes back to the web server and then the preferences key is sent and the only disclosed embodiment is preference key locating the preference key. [00:14:33] Speaker 03: I'm sorry, line 185? [00:14:33] Speaker 01: 186, I'm sorry, 186. [00:14:37] Speaker 01: Got it. [00:14:38] Speaker 01: And then 188 is the preference key coming back. [00:14:41] Speaker 01: So in summary, the board was correct in not limiting [00:14:48] Speaker 01: the claim to hidden preferences files. [00:14:51] Speaker 01: The board was also correct in finding that the authenticity key does, as Your Honor suggested, provide the predicate, the condition, for the preferences key to locate the preferences file. [00:15:04] Speaker 01: But it need not do it itself or do it directly. [00:15:06] Speaker 01: And ultimately, the question of whether the board addressed the locate limitation is one of substantial evidence they did. [00:15:16] Speaker 01: It's supported both by the declaration of what relied upon and also as a matter of logic. [00:15:22] Speaker 01: You can't retrieve an authenticity stamp until you've located the file or its stored. [00:15:27] Speaker 01: Thank you. [00:15:28] Speaker 04: Thank you, Mr. Lee. [00:15:29] Speaker 04: Mr. Wright has whatever time he needs, if he needs it. [00:15:36] Speaker 04: All right. [00:15:44] Speaker 00: Thank you, Your Honor. [00:15:47] Speaker 00: Briefly, I think there's at least some stated confusion about our position and whether it works because we're contending that the preferences file has to be hidden. [00:16:01] Speaker 00: And I know the statements were made and the argument was made that there are embodiments disclosed and the experts agreed that the preferences file may be encrypted and need not be hidden. [00:16:13] Speaker 00: And that's part of our point when we [00:16:15] Speaker 00: point out the differences between the 191 and the 838 patent. [00:16:20] Speaker 00: In the 838 patent, the file is encrypted so there's no need to hide it because its contents are not retrievable without other information, specifically with the preferences key to decrypt it as claimed in the 838 patent claims, all of the independent claims of the 838 patent. [00:16:38] Speaker 00: In the 191 patent, on the other hand, all of the independent claims use the word locate [00:16:44] Speaker 00: And locate, as we've said in the context of the specification, means to find something. [00:16:52] Speaker 00: Find something whose location is not known without the information that you're obtaining. [00:16:57] Speaker 00: And that's why when we see the term authenticity key locates or enables location of the preferences file. [00:17:07] Speaker 03: Go ahead. [00:17:09] Speaker 03: Explain to me what [00:17:14] Speaker 03: I guess with Mr. Lee, I suggested that my understanding of the board's position is the board adopted a preconditioned claim construction, which, as I understand it, means [00:17:26] Speaker 03: you need the authenticity key to move to the finding routine. [00:17:30] Speaker 03: And that routine doesn't have to itself make use of the authenticity key. [00:17:36] Speaker 03: It makes use of other things. [00:17:39] Speaker 03: That's a way of, sounds like a way in which your security could be provided even without the encryption. [00:17:47] Speaker 03: So how is your position about enabling or locating different from that? [00:17:54] Speaker 03: What more do you think [00:17:56] Speaker 03: is required under your point construction. [00:17:58] Speaker 00: I think under locate the file has to be hidden whether the authenticity key is a precondition or not because if an intruder program, for instance, were able to access your system and the file were there readily available with the stamp in it, they'd be able to retrieve that stamp. [00:18:19] Speaker 00: If you have to have the information contained in the authenticity key, for instance, to locate the file [00:18:26] Speaker 00: locations not known, then that is at least a measure of security there. [00:18:31] Speaker 00: Similarly, if the file is encrypted and you have to have the preferences key to decrypt the file, that's an aspect of security here as well. [00:18:41] Speaker 03: So is the need for an authenticity key that allows you to move to a routine under which you get a preferences key [00:18:50] Speaker 03: If you have a system like that, and you can't find the file without that, all implicit, does that automatically mean that it's hidden? [00:19:00] Speaker 03: I'm trying to understand both the meaning of hidden and the relation between hidden, which is your proposed term, [00:19:11] Speaker 03: and the seemingly separate question of whether the authenticity key needs to be used in the finding, in the locating. [00:19:21] Speaker 00: If the authenticity key itself, it can be used to locate. [00:19:32] Speaker 00: That's clear. [00:19:33] Speaker 00: That's an option that we have. [00:19:34] Speaker 00: If the authenticity key locates a preferences key, for instance, I know that there [00:19:40] Speaker 00: our statements and it was pointed out in the briefing that the district court in claim construction said the preferences key directly locates a preferences file. [00:19:51] Speaker 00: I think that would satisfy that meaning too, where it is providing the ability to locate the file. [00:19:59] Speaker 00: If you're talking about just as a precondition to, I guess it depends on what precondition means. [00:20:07] Speaker 00: If you're talking about receiving the authenticity key, [00:20:10] Speaker 00: and retrieving it out of the formatted data, if that is the precondition, but then you toss it aside, I think that there could potentially be a situation where you can toss it aside and not use that directly in the location. [00:20:27] Speaker 00: But I think locate still means something has to locate the preferences file. [00:20:32] Speaker 00: And it has to be in an obscure location at that point. [00:20:36] Speaker 00: I don't know if that answers the question or not. [00:20:45] Speaker 00: We talked earlier about the board's failure to address the claim limitations. [00:20:53] Speaker 00: And the argument was brought up earlier that no, the board didn't do that. [00:20:58] Speaker 00: It found exactly where in the prior art it located and retrieved the preferences file and retrieved the authenticity stamp. [00:21:07] Speaker 00: And we respectfully disagree with that. [00:21:09] Speaker 00: I think the board, it did [00:21:14] Speaker 00: at least reportedly identify where the authenticity stamp was retrieved from a preferences file. [00:21:23] Speaker 00: But in all of those situations, there was no suggestion that the preferences file was anywhere other than in hand readily available. [00:21:30] Speaker 00: And our point in that argument was that by saying that the elements to enable the authenticity key to be retrieved from the formatted data and to locate a preferences file, the board simply said [00:21:45] Speaker 00: We disagree that this has to be hidden. [00:21:47] Speaker 00: And then they basically skipped to the next step and said, when you take the authenticity stamp out of the preferences file, you've satisfied these elements. [00:21:57] Speaker 00: And that's why we said that there hadn't been enough there to show in validity in light of this prior art. [00:22:03] Speaker 00: There's no suggestion in the prior art that a file is hidden or that there's any information needed to locate that file. [00:22:11] Speaker 00: And that was our position on that. [00:22:16] Speaker 02: I have a hypothetical for you. [00:22:18] Speaker 02: Go ahead. [00:22:18] Speaker 02: Let's assume we were to affirm the board in the first case. [00:22:23] Speaker 02: What effect does that have on this case? [00:22:26] Speaker 00: If you affirm the board in the CBM, then on all grounds. [00:22:33] Speaker 02: Hypothetically. [00:22:35] Speaker 00: Yeah. [00:22:35] Speaker 00: So you would hold that the patent is subject to CBM review and that all the claims except 24 are [00:22:43] Speaker 00: invalid, then I believe... The other way. [00:22:47] Speaker 03: The CBM covers everything. [00:22:49] Speaker 03: This is the one that's missing 24 hours. [00:22:51] Speaker 00: Right, right. [00:22:51] Speaker 00: Yeah. [00:22:52] Speaker 00: So if you affirmed CBM, then it would dispose of the issues in this case. [00:22:58] Speaker 04: How about the reverse question? [00:23:00] Speaker 04: If we reverse the board, in the first case, and find it was not a CBM, does that mean we can't deal with the merits? [00:23:09] Speaker 04: It was not a proper CBM? [00:23:11] Speaker 04: We can't deal with the merits in the first case. [00:23:14] Speaker 04: Can we deal with them in the second case? [00:23:16] Speaker 00: I think in that situation, if you reverse the CBM eligibility finding, you don't reach the question of the merits in the first case. [00:23:26] Speaker 00: But you would need to decide the merits one way or another, hopefully reversing in the second case. [00:23:31] Speaker 03: Can I ask? [00:23:32] Speaker 03: I'm sorry. [00:23:33] Speaker 03: The third question, this is more about [00:23:37] Speaker 03: I don't know. [00:23:38] Speaker 03: Do you care? [00:23:39] Speaker 03: Suppose we affirm, in this case, the IPR. [00:23:44] Speaker 03: So all claims for 24 are held to be properly canceled. [00:23:50] Speaker 03: That leaves claim 24 for the CVM. [00:23:54] Speaker 03: Do you have a stake in our deciding that? [00:23:58] Speaker 00: I think we do have a stake in deciding that, both in terms of claim 24 itself and also in, as I mentioned earlier, [00:24:07] Speaker 00: just the guidance as litigants. [00:24:10] Speaker 03: Yeah, but we don't generally give guidance because you're interested in the answer to the question. [00:24:14] Speaker 03: If you don't care about claim 24, then I guess that's really the question. [00:24:23] Speaker 03: But you said you do. [00:24:24] Speaker 00: Well, we certainly care about having open claims in the patents. [00:24:29] Speaker 00: I believe there are still licensees who pay licenses on the patents based on whether they're [00:24:37] Speaker 00: is or is not a valid claim alive still in the patent, for instance. [00:24:41] Speaker 00: I can tell you I don't believe the claim 24 is currently being asserted. [00:24:44] Speaker 00: But we certainly have a stake and a property interest in claim 24. [00:24:49] Speaker 02: Let me try one more version for you, since we're playing this game. [00:24:54] Speaker 02: If we vacate and remand in the first case. [00:24:58] Speaker 02: On all issues. [00:24:59] Speaker 02: On all issues. [00:25:01] Speaker 02: What effect does that have on this case? [00:25:08] Speaker 00: I mean, I'm trying to run that out of my head. [00:25:11] Speaker 00: I think then you have two separate appeals. [00:25:18] Speaker 00: The court could potentially rule on this case or wait and see what happens in that case. [00:25:24] Speaker 00: Obviously, there are more claims at issue here. [00:25:27] Speaker 00: So there's at least some interest in reaching a decision. [00:25:33] Speaker 00: We'd like everything to be overturned and none of it to be affirmed. [00:25:38] Speaker 00: So that's my short answer to that. [00:25:40] Speaker 00: But certainly, the court has discretion to rule on the cases as it chooses. [00:25:45] Speaker 04: Thank you, Mr. Wright. [00:25:47] Speaker 04: The case should be taken under advisement. [00:25:53] Speaker ?: All rise. [00:25:54] Speaker ?: Y'all will report as adjourned as of tomorrow morning at 10 o'clock AM.