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a total of six cases before the court today, the last two of which are submitted on the briefs.

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The four that are argued include three appeals from the Patent Trial and Appeal Board arising out of IPRs and one appeal from the Court of Veterans Claims.

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We're going to hear the first three cases first and then we're going to take a break for a personnel change among the

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the judicial officers.

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So we will move forward with the appeals from the Patent Trial and Appeal Board.

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The first case before the court is case number 151934, Vernettix, Inc.

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versus Apple, Inc.

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Now you're going to have to help me with pronouncing your name.

[00:00:52] Speaker 01:
It's Timofee, if you want.

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Timofee, Mr. Timofee, if you want three minutes for rebuttal.

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If I may.

[00:00:58] Speaker 02:
OK.

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You may proceed.

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Go ahead.

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Your Honor, and may it please the Court.

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In the decision below, the Board committed two fundamental errors.

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First, the Board evaluated complex prior art without any supporting expert evidence, and it's resulting in validity findings of premised and unsupported assumptions.

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Second, the Board adopted claim constructions that are contrary to the specification, and that the Gnorver 96 disclaimer that Apple itself considered was unambiguous.

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As to the first issue, this Court has held

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that the board may not substitute its expertise for evidence in the record.

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Let me ask you a question.

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From 36 to 48 of your opening brief, you argue extensively that secure communications link in claims 1 and 16 requires encryption.

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That is correct, Your Honor.

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OK.

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In appeal 1489, which is a related case here today, you took a different position on a related peg.

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On page 23 in your brief, in that appeal, you argue, and I'm quoting, encryption is just one way of achieving data security.

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Is that reconcilable?

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You are not this reconcilable, and also my colleague will be able to address it a little bit more in the context of that appeal.

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But in the specification, the concept of security and whether encryption is required differs based on the context.

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For instance, and this was in the court's Cisco opinion,

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If in the context of private networks, sufficient security can be insured for, for instance, physical security.

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But in the context of unsecure pathways over the networks, which is what's at issue here for the construction of a secure communication link, encryption is required.

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Because both the specification and also the prosecution disclaimer, to which I'll get, demonstrate that only encryption is able to provide the requisite security over those unsecure pathways.

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And so with respect to the specification, in our briefs we demonstrated how the specification provides numerous examples of why encryption is required and why encryption is the only method of ensuring in the context of unsecured pathways the requisite data security.

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One of the points you make is that you disclaim unencrypted secure communications during the ongoing re-examination and that PTAB failed to account for that.

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when they were discussing the prosecution history.

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But in Phillips, we said that a patent's prosecution history consists of a complete record.

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How can we determine that your statement reflects the complete record if the proceeding is ongoing?

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Your Honor, the proceeding was ongoing at the time.

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But what this court has said is that the prosecution, what's important for the prosecution history stop is whether or not it is unambiguous.

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and whether it was understood as such by everyone else.

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Could it have been changed?

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I'm sorry, Your Honor?

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When it was ongoing, could you have changed your position?

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We could have changed the position, but we actually did not change the position.

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And the reason we know that, because Apple insisted and invoked that disclaim in a subsequent and a parallel district court litigation successfully.

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And even in the proceeding before the war, this is in Apple's petition at note 2, Apple actually did acknowledge that we have disclaimed

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in the prior proceeding all unencrypted embodiments.

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So the objective record, I mean, you want to understand your concern, there may be cases where proceeding, contemporaries proceeding is still ongoing and subsequent changes may occur, but this is not such a case.

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There is no dispute between the parties.

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And where do they concede that?

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This is, your honor, this is going to be, this is on page appendix 284 and note two, and this was Apple's petition in the 237 IPR.

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And so what Apple said is Apple said that even the grandparent of the present patent.

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I see it.

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Right.

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So that's the language.

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And so our position is that this is really a case.

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I mean, this court said what's important is whether the disclaimer is unambiguous.

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And here, this is a clear case where not only did we actually unambiguously disclaim if the court looks at the language of a disclaimer, but actually Apple itself has conceded and argued before both the board in this proceeding, but also in the district court successfully.

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that there was such a disclaimer by Vernetix.

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So the objective evidence that this court said, what's important is whether or not everyone else, particularly the patent owners' competitors, understood the disclaimer to be unambiguous.

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This is just a very stark case.

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Apple did rely on this disclaimer at the district court, and that certainly is telling.

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You're not arguing, though, that there is some kind of judicial estoppel here.

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No, Your Honor, we're not arguing judicial estoppel.

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We argue that this is a straightforward case of where this court applies the traditional principles of claim construction.

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And so part of a claim construction is consultation of the intrinsic record, which consists of a prosecution history.

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But you argued against that reliance on that disclaimer at the district court, right?

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We did.

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We tried to.

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We did for other reasons.

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But what we lost?

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So we're not arguing the stopper, but what we're arguing is the Apple's indication of a disclaimer in this report and also before the board here is objective evidence that it viewed the disclaimer as unambiguous.

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I mean, there is no argument by Apple that the disclaimer actually was not unambiguous, at least when Apple argued it before the board.

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So it's not the case of a stopper, but it is a case of where the score can look at the objective indicia of whether or not the disclaimer, in fact,

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demonstrates an ambiguous disavowal of particular limitations, and it does with respect to the unencrypted requirements.

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So assuming we agree with you, and I know we've got to get to a lot of other things, but assuming we agree with you on that claim construction, what's your response to the argument that Apple makes that even if you need encryption, it's taught by Besser?

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Joanne, it is not taught by Besser because, and we

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we presented argument in the brief because Besser's, first of all, Besser at many points discusses how encryption actually will lead to problems.

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Both of respect may aggravate hacking and more importantly may increase the computational burdens.

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The very essence, the very objective of Besser was to provide an alternative to encryption.

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So Besser system of communication is an alternative method of trying to ensure security where encryption is just not feasible.

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So the idea that the notion that Besser teaches encryption is antithetical to the design of Besser.

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And I think the board's contrary conclusion is aggravated by the fact that, as I mentioned, they did disclaim many reliance on the evidence of Apple's expert.

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So at numerous occasions, the board actually began making assumptions what BESA implicitly or impliedly teaches or infers.

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So for instance, in our opening brief, we provided those examples at pages 33, 34.

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There are numerous instances in the board of decisions when it makes assumptions that they're not supported, including about whether or not Besser teaches away from encryption or not, that they're not supported by the record.

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So one example I will give is on page 829, the board said that Besser implies that it always encrypts the public IP address for network device 16, but that's actually a factual impossibility because once the

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Once the tunneling system in BESA is established, the public addresses of device 16 will have to be exchanged.

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So it simply will be impossible to encrypt, particularly, that particular IP address.

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And there are several other examples of where the board just makes assumptions that the court instructed the board should not do, particularly in the case of complex technology.

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You're not asking us to adopt a hard and fast rule that you have to have expert testimony on the record, are you?

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Absolutely not.

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And we acknowledge that there is no per se rule based on the court precedent.

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But what the court said is, particularly, the court openly said it will be a rare case where technology is so simple that the fact finder can understand the prior art without any benefit of expert evidence.

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Well, wait a minute.

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Wait a minute.

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You make that argument in your blue brief at page 30.

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But at 47 in the appendix,

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The board specifically relies on expert testimony.

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Specifically, they say, as Dr. Montrose concedes, that's your expert, and they're relying on him.

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So how can you say they're not relying on expert tests?

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Your Honor, we actually, and I will have to look at that prior concession, but we did and we took an issue of the reply brief with the concessions that the board invoked.

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We don't think that actually... They're still relying on an expert.

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They're relying, but Your Honor, first of all, they're relying, even if you agree that our expert made that concession, which we submit he did not.

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That was only one specific instance.

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And the board, with respect to numerous other findings, the board did not rely on any supporting expert evidence.

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So they may have mentioned in some points that they disagree with our expert, but they had no country evidence that actually supported their inferences from the prior art.

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So the board made, again, the issue for this court is not a per se rule, but the question is, is this technology so simple that the board, and did the board in fact just err by making unsupported assumptions without any benefit of evidence?

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Let's stay on that.

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You cite Brand.

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For the proposition, it is impermissible for the PTAB to base its factual findings on its expertise rather than on evidence in a record.

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But you don't include us saying that the PTAB's, quote, expertise appropriately plays a role in interpreting record evidence.

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Your Honor, we acknowledge actually that every sentence in Brandon's reply brief quite openly.

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And we said, of course, the board has scientific expertise.

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But the question is here at the level of expertise and the parties, both parties agree it was... I know you acknowledged it in your reply brief.

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It was mentioned in the red brief as well.

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But my point is how can you fairly do that without mentioning the other part of the opinion?

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Johanna, in all fairness, we quoted from Brandt the proposition that we thought was fair.

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And again, I think we were not trying to mislead the court because we openly acknowledge that we're not advocating for a presale rule.

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And of course, the board has scientific expertise.

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I mean, that's in the board's statute.

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But our point is here, the court can just look at objective evidence.

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The Apple submitted over 400 pages of expert testimony when it initiated the IPR proceeding.

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The board relied over 55 times.

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The board cited in institution decisions Mr. Fratto's expert declaration.

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And then in the final decision, the board turned around and said that actually they can make factual findings without benefit of expert evidence.

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So the board certainly has scientific expertise.

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And in Belden, this court said, where there is a simple claim, where there is a close piece of prior art, the board can just make its own findings.

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But I think here, if this court looks at this particular knowledge, and particularly prior art, and the contentions that were raised by Apple, this is not the case where the agency can make its own findings without supporting expert evidence.

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And the danger is that that would actually undermine this court's reviewing function.

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Because this court, when it reviews

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an agency such as the board, particularly under substantial evidence, it can look to see whether a particular conclusion of the board actually is supported by the expert evidence, whether the expert did make appropriate inferences from the record, and whether the board relied and fairly considered the testimony of competing experts in contested proceedings such as this.

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Where the board simply says, we're not going to rely on any expert evidence that may potentially support petition, we just can make our own findings.

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There is no way for this court to effectively, we submit, scrutinize whether those findings were in fact correct.

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Or at least, we argue they're incorrect.

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But it's going to make the court's decision much more difficult.

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So Your Honor, I also would like to... You're into your rebuttal time.

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Do you want to save it, or do you want to... I just want to make one other point.

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We also have an argument about the determining limitation, why the board was erring and conflating what we

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with the two determinations.

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One is determination whether the second network device is available for secure communication, with very different determination whether or not the first user, the first device, actually has sufficient security privileges.

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So I'll be happy to answer questions about that, but otherwise I'll reserve my time for rebuttal.

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We'll save your time for rebuttal.

[00:13:44] Speaker 01:
Thank you, Anna.

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Thank you, Judge O'Male.

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Let me get right to one of my questions.

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Yes, Judge Wallach.

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How do the electronic engineers telecommunication standards implicitly teach modulation?

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Judge Wallach, I think the point that the board was coming to on that issue was that Beezer specifically says that you can operate on networks using multiple industry standards.

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standards which include different modulation schemes, so that it was obvious to use Beezer with modulation.

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And you see the reference in Beezer at column 4, 46 to 62.

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I'd also point out that this is an issue that vernetics waived.

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They didn't raise this before the board.

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This is addressed in our brief at pages 63 to 66.

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And in light of the waiver, I think that this is an issue that the court doesn't have to get to.

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But I think what the board was doing

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was referencing the fact that Bezer specifically contemplates the use on multiple industry standards.

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So the other issues, of course, that are before the court are the claim construction issue.

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And I'd like to say a word about that at the beginning, because I think it's important for the court to recognize that whether you agree with frenetics or not on the claim construction issue with respect to secure communication

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Number one, the board found that there was encryption with Beezer, so that is satisfied either way.

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And second, that issue is not an issue with respect to the Weisinger reference, for which there's no dispute.

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But you pretty much have to concede that they're correct on encryption, given the fact that you relied on the disclaimer successfully in district court and argued that it required encryption, right?

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Judge Malley, I think the record is actually far more complicated than that.

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This court on appeal made the point at page 1323 of the Cisco opinion, quote, but the patent consistently differentiates between security

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and encryption.

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And this court recognized that secure... But in that case, I mean, I think that it's somewhat a disingenuous reliance on that case, because in that case, everybody proceeded on the assumption that secure communication link required encryption.

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It was a different question that the court was addressing at that point.

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But Judge O'Malley, on remand from this court, the construction that was used in subsequent proceedings does not require encryption.

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If you look at the September 24, 2015 order,

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in Eastern District of Texas, case 12855, that claim construction on remand from this court does not require encryption.

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Now, to be sure, defendants had argued that they had, based on prosecution history, should be limited to encryption.

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This court has recognized, of course, that you can have arguments about claim construction based on the prosecution history that don't necessarily rise to the level of disclaimer.

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And of course, you're dealing with a different standard when you're before the board.

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I can't imagine a more clear disclaimer.

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Well, Judge O'Malley, if you look at what happened in that proceeding, and this gets exactly to the board's point about the fact that this was not a completed proceeding, the examiner in that proceeding ultimately rejected Fernetix's argument, found, and you can see this reference to page A436 of the record, the examiner found that the secure communication link

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did not require encryption.

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And so when you look at the record as a whole, yes, what they said certainly would have consequences under the Phillips standard.

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But does that mean that it is the kind of unequivocal disclaimer that this court requires in order to find that there's been a true disavowal?

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I don't know that you can say that.

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I think the record is ultimately ambiguous.

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But as I pointed out at the beginning, and I think this is

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I don't think this is disputed.

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This issue ultimately does not matter if you find that Beezer discloses encryption.

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And of course, the board, in fact, not only the board in this case, but the panel of the board in the third appeal that we hear today, and the examiner there as well, so six different members of the board and the examiner in the 181 proceeding, have all found that Beezer discloses encryption.

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And that's, in fact, in the 181 proceeding, for example,

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The examiner there found the column two itself of Bezer suggests using encryption with the techniques that are disclosed in Bezer.

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Bezer's not teaching away from encryption, and that's of course another point here.

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You have the Bezer issue before the court, not just on anticipation in this proceeding, but also on obviousness.

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And the board found that it would be obvious to combine Bezer

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with the IPSEC protocol.

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The IPSEC protocol is, of course, specifically referenced.

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Well, but that's a different question.

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And in that case, in this case, we don't have an obviousness finding.

[00:19:04] Speaker 00:
No, in this case you do.

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In this case, all of the claims were found to be obvious over the combination of Beezer and IPSEC.

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In the third appeal, the board only reached the issues of anticipation.

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It did not address the other grounds on which the examiner had rejected the claims.

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In this case, you have

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Both obviousness and anticipation.

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In fact, as I said, all of the claims were found to be obvious over Beezer and RFC 2401, which is IPSEC, and all the claims 2 and 24 were found to be anticipated by Beezer.

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You also have, of course, anticipation and obviousness over the Weisinger reference.

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And let me turn.

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Let's talk about the big issue, which is whether or not the board can do this without reliance on expert testimony.

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I mean, yes, we give the board credit for their expertise, but not to such an extent that there doesn't have to actually be evidence in the record.

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To be sure, Judge O'Malley, the question before the court is whether or not there's substantial evidence.

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And of course, the substantial evidence here is, number one, in the form of the references themselves, and number two, in the form of

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concessions from Vernetix's expert, which the board specifically relied on.

[00:20:23] Speaker 02:
You make a point of that, but really it only went to one issue.

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There were two concessions that you cite.

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They were only in the 237th proceeding.

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You acted like the board kept referring to Vernetix's expert over and over and over and over,

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kind of like the 50-some times that they referred to your expert in the institution decision.

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But they didn't.

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It was really only on one small point in the 237 proceeding.

[00:20:50] Speaker 00:
So Judge O'Malley, the board specifically referred to Vernettix's expert on the issue of teaching away.

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Teaching away.

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That's A46 to 47.

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On some other issues, the board found that Vernettix's expert was not credible.

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You can see that at A42.

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But what you have before the court, of course, are prior art references

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that are printed publications and deep patents, presumed to be enabling, which the board properly relied on.

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But the board made very specific factual findings about what they inherently teach, what they would suggest to one of skill in the art.

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They made all of these detailed findings about what one of skill in the art at the time would understand, and yet they didn't have anyone who they

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found to be of skill in the art to say those things.

[00:21:35] Speaker 00:
So Judge O'Malley, first, I think if we look at the issues that were actually in dispute, that were actually, that Vernautics actually points to, they're fairly narrow issues.

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They're not particularly complicated issues.

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They are issues like teaching away.

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They're issues like whether or not a person of ordinary skill in the art, somebody with a master's degree in computer science or electrical engineering and a couple of years experience, in the year 2000,

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would immediately envision a notebook computer when there's a reference to a computer.

[00:22:07] Speaker 02:
There was the question of whether or not the request to look up the IP address was disclosed in Beezer when the entire point of Beezer's system... They made factual findings on virtually every underlying factual question that's involved in an obviousness determination, or even an anticipation determination, what the prior art shows, what the prior art would teach,

[00:22:31] Speaker 02:
whether it taught away.

[00:22:32] Speaker 02:
They don't mention what the level of skill in the art is, but I guess their rejection of your expert who didn't rise to the level of skill in the art would be indicative that they understood it was pretty high.

[00:22:45] Speaker 00:
So Judge Amali, a couple of points.

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First, I don't think there was ever any dispute about what the level of ordinary skill in the art was.

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The question was, did you actually have to have the academic credentials in order to show that you had the requisite level of experience?

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Second, the board did not, quote, reject our expert.

[00:23:01] Speaker 00:
I think that's a very important point to recognize.

[00:23:03] Speaker 00:
If you look at A55 and A92, what the board says is we don't need to rely on Apple's expert.

[00:23:11] Speaker 00:
The board didn't make any findings that our expert was unqualified or was... They said it mooted it.

[00:23:16] Speaker 00:
It said it mooted the issue.

[00:23:18] Speaker 00:
Essentially, the board took the issue off the table.

[00:23:20] Speaker 00:
The board said the issues that are before us, things like

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would a notebook computer be immediately envisioned?

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Is there teaching away when on the face of the reference?

[00:23:29] Speaker 00:
Let me ask you this.

[00:23:30] Speaker 03:
At one point, the PTAB cites Apple's petition at JA301 in support of its findings.

[00:23:41] Speaker 03:
But in that passage, Apple relies on Frodo.

[00:23:46] Speaker 00:
Is that a problem?

[00:23:47] Speaker 00:
I don't think so, Judge Wallach.

[00:23:48] Speaker 00:
I think that they are relying on our argument and reasoning.

[00:23:51] Speaker 00:
And that's exactly what this court recognized in Belden.

[00:23:54] Speaker 02:
But your argument and reasoning was based on Fratto.

[00:23:56] Speaker 02:
I mean, like it or not, you presented an expert that at least there was fair argument that he wasn't qualified.

[00:24:04] Speaker 00:
So Judge O'Malley, I think this comes back to look at this court's decision in Belden and look at this court's decision in perfect web.

[00:24:11] Speaker 00:
There is not a single decision of this court

[00:24:14] Speaker 02:
saying that for purposes of deciding anticipation, and again most of the claims here were found to have been anticipated, that you have to have an expert to lead you by the nose on how to... They concede they're not asking us for a determination that says you always have to have an expert, but in Brand we said it would be the rare case where with complex technology you could proceed without an expert.

[00:24:36] Speaker 00:
So first of all, Brand was not a case involving anticipation or obviousness.

[00:24:42] Speaker 00:
Brand was an interference

[00:24:44] Speaker 00:
where the question was derivation.

[00:24:47] Speaker 00:
And there were arguments being made about the drawings and whether or not these drawings, whether they could have been combined and what they would have disclosed.

[00:24:55] Speaker 00:
They were not enabling prior art references.

[00:24:58] Speaker 00:
And in fact, this court made clear in brand.

[00:24:59] Speaker 02:
But this is not an examination proceeding.

[00:25:01] Speaker 02:
This is an adversary proceeding with burdens of proof that are applicable.

[00:25:06] Speaker 02:
And Apple had the burden of proof.

[00:25:09] Speaker 02:
The board is supposed to be acting as a neutral arbiter.

[00:25:11] Speaker 02:
Even if we defer to their expertise to a limited extent with things like application of common sense, how can we say that the board can reach conclusions with nothing but argument in front of it?

[00:25:23] Speaker 00:
Judge O'Malley, first, if I could finish the thought on brand, this court there said that the board had done more than, quote, simply interpret the drawings from the standpoint of want of skill in the art, strongly implying that if all that the board had done was interpret the drawings from the standpoint of a person of ordinary skill in the art,

[00:25:38] Speaker 00:
That would be fine.

[00:25:39] Speaker 00:
Belden says that is fine.

[00:25:42] Speaker 00:
Perfect Web says that that is fine.

[00:25:44] Speaker 00:
And that's what the board did here.

[00:25:46] Speaker 00:
It looked at the prior art references and in a very meticulous opinion.

[00:25:51] Speaker 00:
My colleague suggested that they were a danger.

[00:25:53] Speaker 02:
An opinion that virtually tracks Mr. Fredo's opinion.

[00:25:56] Speaker 00:
An opinion in which the board walks through the references, which is what Mr. Fredo had done.

[00:26:01] Speaker 00:
It makes Mr. Fredo's findings.

[00:26:03] Speaker 00:
In which Mr. Fredo had walked through the references.

[00:26:06] Speaker 00:
And the board walks through the references, citing the references themselves.

[00:26:10] Speaker 00:
And the question before the court is, is there substantial evidence?

[00:26:14] Speaker 00:
There's no requirement.

[00:26:17] Speaker 00:
There's no procedural issue.

[00:26:19] Speaker 00:
There's no issue with respect to having to have an expert.

[00:26:21] Speaker 00:
The question is, do you have substantial evidence?

[00:26:23] Speaker 00:
And in this court's decision in Belmont, the court reversed a finding of the board of non-obviousness

[00:26:32] Speaker 00:
based on the references themselves.

[00:26:34] Speaker 02:
A very narrow question, though, in Belden.

[00:26:36] Speaker 02:
It was not a situation where there were repeated findings of facts.

[00:26:40] Speaker 00:
Well, Judge O'Malley, again, I think that you have a very narrow situation here when you drill down to where the actual disputes are.

[00:26:48] Speaker 00:
Vernettix makes this argument as though it were essentially a get-out-of-jail-free card, that you didn't have an expert, and so therefore the board is simply out freelancing.

[00:26:57] Speaker 00:
This isn't what the board is doing.

[00:26:59] Speaker 00:
The board is pointing to things specifically

[00:27:01] Speaker 00:
in the references, and you would have to go point by point, issue by contested issue, reference by reference, to say, oh, is there or is there not substantial evidence?

[00:27:11] Speaker 00:
Is this supported by those prior art references or not?

[00:27:15] Speaker 00:
And I haven't heard any argument about, for example, why the board's decision with respect to Weisinger are not supported by substantial evidence.

[00:27:24] Speaker 00:
We've heard an argument about whether or not it is a proper construction of

[00:27:31] Speaker 00:
available to construction argument that they actually waived in that proceeding, they didn't raise claim construction.

[00:27:37] Speaker 00:
You can see that at A10299.

[00:27:39] Speaker 02:
But there's no expert for Wysenker either, if we don't rely on Mr. Fredo.

[00:27:43] Speaker 00:
The board didn't rely on Apple's expert because it didn't find it necessary to.

[00:27:48] Speaker 00:
The board, in many ways, precisely because it is required by statute to have scientific training, is best positioned to know when it needs an expert or when it doesn't.

[00:27:58] Speaker 00:
And it's hard to understand

[00:27:59] Speaker 00:
when the board is typically going to need an expert for purposes of anticipation.

[00:28:04] Speaker 00:
I mean, this case doesn't present issues like inherency, where you have to back out calculations, or you have to determine whether or not a chemical was necessarily present.

[00:28:15] Speaker 00:
There's not an enablement dispute here.

[00:28:17] Speaker 00:
I mean, what the board does is what this court does in case after case after case, in opinion after opinion, where it talks about the references and doesn't say a word about the expert.

[00:28:27] Speaker 00:
whether there's an expert or not.

[00:28:29] Speaker 00:
And I think that for this court to hold that an expert is required here would be a breathtaking proposition.

[00:28:35] Speaker 00:
And I think it would undermine the function that's done by examiners every day.

[00:28:39] Speaker 00:
You said this is an adversarial proceeding.

[00:28:42] Speaker 00:
That's true to a point.

[00:28:43] Speaker 00:
But this is different than what was at issue in Brand.

[00:28:46] Speaker 00:
What was at issue in Brand was, I said, a priority fight in which the public doesn't have an interest.

[00:28:53] Speaker 00:
What's at issue here is something in which the public strongly has an interest.

[00:28:56] Speaker 00:
and in which the board proceeds even if parties drop out.

[00:29:00] Speaker 00:
CUSO itself, of course, went all the way to the Supreme Court without any party being on the other side.

[00:29:05] Speaker 00:
And so I don't think it's an answer to say that it's an adversarial proceeding.

[00:29:08] Speaker 02:
We're still talking, though, about a patent that was issued by the board and upon which businesses were built.

[00:29:13] Speaker 02:
And now we're trying to determine an adversarial proceeding if that patent is invalid.

[00:29:18] Speaker 00:
Well, I respectfully disagree with the notion that any businesses were built on any of the patents that are at issue here, but regardless of that,

[00:29:26] Speaker 00:
The question before the board and the burden of proof is exactly the same burden that an examiner has in any case that's an examination or an ex-party re-examine.

[00:29:37] Speaker 00:
It is the exact same burden of proof.

[00:29:40] Speaker 00:
That is to prove that it is not patent.

[00:29:42] Speaker 02:
No, the burden is not on the patent holder, and there's no burden on the board.

[00:29:47] Speaker 02:
The burden's on Apple here.

[00:29:48] Speaker 00:
No, but my point, Judge O'Malley, is if you were in an ex-party re-exam,

[00:29:52] Speaker 00:
the burden that the examiner has to meet or to show in order to find that the patent is not patentable and cancel the claims is the same burden that is on Apple in this proceeding, which is by a preponderance of the evidence, what was the subject matter not patentable.

[00:30:11] Speaker 00:
It's the exact same burden of proof.

[00:30:13] Speaker 00:
And I think that if the court holds on this record where you have what are really very narrow issues, whatever you want to think about this technology in general,

[00:30:22] Speaker 00:
We can dispute whether or not it's complicated in general.

[00:30:26] Speaker 00:
The issues that the board had before it are narrow issues that are not particularly complicated.

[00:30:32] Speaker 00:
Like, is there a teaching away when on the face of the patent, it specifically discloses the thing that frenetics argues is being taught away?

[00:30:42] Speaker 00:
Would you immediately?

[00:30:43] Speaker 00:
Your time is up.

[00:30:44] Speaker 00:
Thank you.

[00:30:44] Speaker 00:
Thank you, Your Honor.

[00:30:45] Speaker 02:
We'll add an extra minute to the rebuttal to make up for that.

[00:31:04] Speaker 02:
Do you see a distinction between the 237 proceeding and the 238 proceeding with respect to the kind of findings that the board made?

[00:31:15] Speaker 01:
The findings were different, but I think the same fundamental problem actually imperils both, because the board was making assumptions about both passenger and passenger that were not supported by substantial evidence and not supported by any expert evidence.

[00:31:29] Speaker 01:
So for instance, in our brief, we

[00:31:31] Speaker 01:
On pages 33 and 34, we gave some examples, such as an appendix 29, respect to Besser.

[00:31:37] Speaker 01:
But we also gave an example of a board's determination at appendix 89 to 91, when the board determined what one of ordinary skills in the art would have understood in the basis of Wessinger.

[00:31:47] Speaker 01:
So I think if the court goes and looks at the board's actual findings as to both references, there will be the same lack of expert evidence.

[00:31:55] Speaker 01:
And to that central issue, Judge Amali,

[00:31:59] Speaker 01:
Apple now argues that the technology was not complex, that expert evidence was not required to understand it.

[00:32:06] Speaker 01:
As I mentioned, the board relied on Mr. Fratto's declaration over 55 times at the institutional proceedings.

[00:32:12] Speaker 01:
Apple itself, when it filed the IPR petitions, it introduced the prior art solely through the testimony of Mr. Fratto, not by references to the prior art itself.

[00:32:22] Speaker 01:
So this is, again, an indication, I think, objective indication to the court that this is not the type, the example of simple references in such as in Belden when the court said this involves a very close piece of mechanical art and the issue is simple.

[00:32:35] Speaker 01:
This is a very different case.

[00:32:37] Speaker 01:
And I would emphasize that Jeff, maybe you said that it was Apple that had the burden of proof throughout this proceeding below.

[00:32:45] Speaker 01:
With respect to the question that the board took simply the issue out of the picture, again, the board relied on Mr. Ferretta at the institution repeatedly, and we, in our reply on page three, note one, we indicated numerous reasons why the expert was really not qualified and also why his impartiality was questioned.

[00:33:06] Speaker 01:
To address the question of encryption,

[00:33:08] Speaker 01:
This court has said many times, it doesn't matter whether or not the examiner relied on a disclaimer.

[00:33:14] Speaker 01:
What matters is whether or not the disclaimer was unambiguous and how it was understood by others.

[00:33:18] Speaker 01:
With respect to the Phillips standard, obviously this court after Coasa applies a different standard to when reviewing IPR proceedings.

[00:33:25] Speaker 01:
But the question is still whether, even under the broadest reasonable interpretation, the claim construction is reasonable in light of the intrinsic record.

[00:33:34] Speaker 01:
And so this court looks still, even under BIR, at the prosecution history disclaimer.

[00:33:39] Speaker 01:
The standard doesn't somehow make this claim more unambiguous than it would be under Phillips.

[00:33:44] Speaker 01:
With respect to the fact that under any claim construction of secure communication link, Beza just teaches encryption.

[00:33:52] Speaker 01:
That is not correct.

[00:33:53] Speaker 01:
And we have the argument why the very solution, the very design of BESA is to provide an alternative to encryption.

[00:34:00] Speaker 01:
And with respect to the argument that our expert, Mr. Monrose, made any concessions, specifically on that point in our reply on page 20, we do actually demonstrate that the board was incorrect when it interpreted Mr. Monrose's admission that conceivably one could resolve the computational problems to say that, in fact, BESA teaches such a resolution.

[00:34:21] Speaker 01:
designed the system because of the concerns about computational problems that encryption would cause.

[00:34:27] Speaker 03:
They misinterpreted his admission as a concession.

[00:34:31] Speaker 01:
That would be our position, or at least it is our position that it is not a concession.

[00:34:35] Speaker 01:
You are there.

[00:34:37] Speaker 01:
I see my bottle caps expired.

[00:34:38] Speaker 02:
Yes.

[00:34:39] Speaker 02:
Thank you.

[00:34:40] Speaker 02:
We'll move on to the next battle.