[00:00:00] Speaker 01:
Mr. Pallas?

[00:00:03] Speaker 03:
That's right, Your Honor.

[00:00:04] Speaker 01:
Okay.

[00:00:05] Speaker 01:
You would like three minutes for rebuttal as well?

[00:00:08] Speaker 01:
Yes, Your Honor.

[00:00:25] Speaker 01:
Okay.

[00:00:26] Speaker 01:
I'm sorry.

[00:00:26] Speaker 01:
You're ready?

[00:00:27] Speaker 03:
Yes, Your Honor.

[00:00:28] Speaker 03:
Your Honor, it may please the Court.

[00:00:30] Speaker 03:
Today I'd like to discuss how the board erred in misreading the patent specification and misunderstanding and or ignoring disclaimers specifically in the specification and in the file histories in construing two terms, a VPN communication link or VPNCL and secure domain name service or SDNS.

[00:00:51] Speaker 03:
Time for meeting, I'll try to address other terms and other issues.

[00:00:55] Speaker 01:
I mean, this is one of those situations where that

[00:00:57] Speaker 01:
Your blue brief seemed like you were just throwing everything at the wall, hoping something would stick.

[00:01:01] Speaker 01:
I mean, you get like two sentences for each of your arguments, practically.

[00:01:06] Speaker 01:
Are these two things your real focus?

[00:01:10] Speaker 03:
For purposes of today, we think there's a common thing, Your Honor.

[00:01:14] Speaker 03:
We certainly appreciate that there's a lot of issues with respect to these four IPRs, or rather six, that have been combined.

[00:01:22] Speaker 03:
Some of the issues that I'm going to discuss with respect to VPNCL

[00:01:27] Speaker 03:
And the SDNS is going to also apply to terms like SDN and other constructions, such as client computer.

[00:01:37] Speaker 02:
Clear something up for me, OK?

[00:01:39] Speaker 02:
Yes, sir.

[00:01:40] Speaker 02:
On page 39 of the blue brief, about halfway down, you say, in another embodiment, the specification explains that a user's computer, 2501, includes this client application.

[00:01:56] Speaker 02:
And then I look at the appendix sites to the patents, and they reference figure 25.

[00:02:08] Speaker 02:
But when I go to figure 25, take a look at it.

[00:02:15] Speaker 03:
Yes, sir.

[00:02:15] Speaker 03:
I'm there.

[00:02:27] Speaker 02:
Underneath the figure 25, it says prior art.

[00:02:32] Speaker 02:
That's correct, sir.

[00:02:33] Speaker 02:
And so how is that another embodiment?

[00:02:37] Speaker 02:
I found it confusing.

[00:02:38] Speaker 03:
I certainly appreciate that.

[00:02:41] Speaker 03:
Clearly, Vern Eddix is not trying to say that the description in figure 25 in and of itself is an embodiment of invention.

[00:02:49] Speaker 03:
We label it prior art.

[00:02:51] Speaker 03:
Now, I think what Apple is trying to make hay out of is, oh, look, reference to figure 25.

[00:02:57] Speaker 03:
I believe Your Honor's referring to the client computer aspect, the client construction.

[00:03:02] Speaker 03:
There, with respect to the conventional systems, yes, it may refer to prior art and having a client computer.

[00:03:08] Speaker 03:
That's a user computer.

[00:03:09] Speaker 03:
But that doesn't take away from the fact that the inventions that are described, Figure 26, Figure 33, build upon that architecture.

[00:03:18] Speaker 03:
And in fact, Figures 26 in the specifications is very clear that a user computer is the client computer.

[00:03:25] Speaker 03:
And they even referred to it 2601 as a user's computer.

[00:03:30] Speaker 03:
So the reference to figure 25, albeit it's still prior art, we think that the specification absolutely supports Vernettix's constructions with respect to client computer being a user computer.

[00:03:46] Speaker 03:
So if I could, back to your question, Judge O'Malley, with respect to all these issues that we're dealing with.

[00:03:53] Speaker 03:
Hopefully I'll be able to touch on some of these common themes, such as disclaimer issues.

[00:03:58] Speaker 03:
We've heard some discussion on that already and actual misunderstanding of how the inventions are disclosed in our patents.

[00:04:07] Speaker 03:
Let me start with VPNCL.

[00:04:09] Speaker 03:
We believe the board erred with respect to this term in three ways.

[00:04:14] Speaker 03:
First, the board erred by not requiring a VPNCL to require a link between computers within a network.

[00:04:23] Speaker 03:
that it doesn't require direct communications, and third, that it doesn't require a network.

[00:04:28] Speaker 03:
Regarding the first issue, it's telling that Apple proposed a very similar construction as to Vernetix's construction in its petitions before the board.

[00:04:38] Speaker 03:
And under both Apple's and Vernetix's construction, it's clear that a VPN sale is between two points within a VPN.

[00:04:47] Speaker 03:
The board, however, expanded its understanding of VPN

[00:04:51] Speaker 03:
to basically encompass a link that just so happens to attach to a virtual private network.

[00:04:56] Speaker 03:
But such a read would be inconsistent with the specification, which clearly shows that when a VPNCL is created, it's created between a user's computer, client computer, to the secure server.

[00:05:09] Speaker 03:
And the specification absolutely makes clear that communications to that secure address or secure computer is through or using the VPNCL.

[00:05:19] Speaker 01:
What's your response to Apple's reliance on Figure 33?

[00:05:25] Speaker 03:
In terms of in what context?

[00:05:27] Speaker 01:
Well, I mean, the language clearly shows that the link is both point to point, but also traverses the public network.

[00:05:35] Speaker 03:
OK.

[00:05:35] Speaker 03:
Yes, Your Honor.

[00:05:36] Speaker 03:
I think that goes to my third point, which is the network aspect of VPNCL.

[00:05:39] Speaker 03:
So I'll address that right now.

[00:05:42] Speaker 03:
Figure 33 is absolutely, in our view, consistent with Vernettix's

[00:05:47] Speaker 03:
It's still a network.

[00:05:49] Speaker 03:
The term VPNCL still, it's in and of itself the language of the term, virtual private network requires a network.

[00:05:56] Speaker 03:
And it's distinguished from point to point communications in that relying on figure 33, which shows the, I'm going from memory, the connection from the client through, which could be, it could be the internet, but some insecure aspect of a network to the secure target.

[00:06:16] Speaker 03:
doesn't take away from the fact that that VPNCL, once it's created, is still a network.

[00:06:22] Speaker 03:
The difference here, in which the board relies on, is it turns to Kiuchi, this is where this turn comes into, and points to two proxies that communicate directly, and that session between the two proxies terminate whenever there's a new communication that wants to go from a different proxy or a different node.

[00:06:43] Speaker 03:
It's point to point, and that's what's distinguished by

[00:06:46] Speaker 03:
the vernetics patents.

[00:06:50] Speaker 03:
More importantly, with respect to the second issue, Your Honors, which is direct communications, we think the board's construction of VPNCL is wrong because it ignored the unambiguous and unmistakable disclaimers in the prosecution history that requires a VPNCL to include direct communications.

[00:07:11] Speaker 03:
These are disclaimers that Apple itself urged in district court

[00:07:15] Speaker 03:
to not only acknowledge, but to adopt.

[00:07:18] Speaker 01:
For example, during reexamination of- I thought what Apple urged in district court was that a VPN requires direct communication or leverages direct communication.

[00:07:28] Speaker 01:
It didn't say that a VPN communication link required that.

[00:07:33] Speaker 03:
That's absolutely right.

[00:07:34] Speaker 03:
And to be a little more accurate with respect to what Apple said, they called it a clear mandate.

[00:07:39] Speaker 03:
They said it's a clear mandate that absence such direct communications, there's no VPN.

[00:07:45] Speaker 03:
But that's still applicable to what we have here, because a VPN CL is within a VPN.

[00:07:51] Speaker 03:
The construction that Bernetics was proposing and the construction that Apple proposed before the board, Your Honor, also included a VPN.

[00:07:59] Speaker 03:
The VPN term is part of that construction.

[00:08:02] Speaker 03:
And as set forth in our papers, in our brief, and before the board, we've always argued that the direct communication aspect with respect to a VPN is part of the VPN communication link.

[00:08:16] Speaker 01:
What about the fact that the board found that, and I don't know how to pronounce this either, Kiyuchi?

[00:08:21] Speaker 01:
Kiyuchi, yes, Your Honor.

[00:08:22] Speaker 01:
That Kiyuchi discloses direct communication even if it is required.

[00:08:27] Speaker 03:
That brings me to a fundamental issue with respect to how the board's reading Kiyuchi.

[00:08:32] Speaker 03:
And we think the way direct communication comes into play is actually consistent with how this court addressed Kiyuchi, which was that issue with respect to a related patent in the CISCO opinion.

[00:08:46] Speaker 03:
Notably, in Kyuuchi, how the board is viewing Kyuuchi is you have two proxies, a client-side proxy and a server-side proxy.

[00:08:55] Speaker 03:
And they are focusing on those two nodes as both the first device with respect to some claims or the node, so to speak, that sends the query message and also has the communication to the server-side proxy, which is what they're pointing to as the secure device or secure computer network address.

[00:09:15] Speaker 03:
The problem is there's substantial evidence in the record showing that that type of read of Kyuchi is very narrow.

[00:09:23] Speaker 03:
It's not accurate.

[00:09:24] Speaker 03:
The full purpose of Kyuchi is it has a user agent sitting behind the client-side proxy.

[00:09:30] Speaker 03:
And it actually has a origin server sitting on the other side of the server-side proxy.

[00:09:35] Speaker 03:
The resources that are required, that are requested by the user, are not at that server-side proxy.

[00:09:42] Speaker 03:
The get request that Apple points to

[00:09:44] Speaker 03:
is not to get the resources refers to the origin server.

[00:09:49] Speaker 03:
And QG is very clear in saying that's where the resources are located.

[00:09:53] Speaker 03:
So to get to this point about referring to direct communications with respect to the client side proxy and the server side proxy, you have to look at the application of QG as a whole with respect to the claims.

[00:10:08] Speaker 03:
In other words, where are the query messages, how the corresponding secure computer network address is being addressed.

[00:10:14] Speaker 03:
And when you look through those lenses, like the court did here in Cisco, you'll see that, as the court noted, a client-side proxy cannot provide direct communications consistent with what was in the claims with that patent, which was related patents, but BPN was that issue there.

[00:10:38] Speaker 02:
Let me ask you this.

[00:10:39] Speaker 02:
On page 68 of your opening brief, you argued that,

[00:10:45] Speaker 02:
PTAB failed to find the requisite level of ordinary skill in the art.

[00:10:50] Speaker 02:
And on 74 of the response, Apple claims you waived it.

[00:11:00] Speaker 02:
And you must recall it, because they say you didn't raise it below.

[00:11:08] Speaker 02:
And what I'm looking at is your reply brief.

[00:11:11] Speaker 02:
OK.

[00:11:11] Speaker 02:
And I'm sorry.

[00:11:12] Speaker 03:
You can please speak.

[00:11:13] Speaker 02:
So in your reply, you say, this is why I found it a little troubling, that Apple does not contest that the board conducted an analysis into whether a skilled artisan would have combined the references.

[00:11:30] Speaker 02:
And you say that, but you don't address at all the waiver argument.

[00:11:36] Speaker 02:
It's as if you ignored it or decided not to deal with it.

[00:11:43] Speaker 03:
a little bit of a misunderstanding there, Your Honor.

[00:11:45] Speaker 03:
It's not that we were... Well, you should have told me that.

[00:11:48] Speaker 03:
No, no, I mean from their perspective.

[00:11:51] Speaker 03:
I know.

[00:11:51] Speaker 03:
And my point is that with respect to those claims that are at issue, our argument is that the Board did not perform its requisite analysis to support its obviousness positions.

[00:12:04] Speaker 03:
We weren't saying that there was a dispute between the level of skill.

[00:12:07] Speaker 03:
In fact, the Board in its institution decision and its final decision, I believe in the 403

[00:12:13] Speaker 03:
actually supported that there is a certain level of skill relating to the complexity of the nature of the technology.

[00:12:20] Speaker 02:
So you're saying you couldn't have waived it because that wasn't to be argued.

[00:12:24] Speaker 03:
The level of skill?

[00:12:26] Speaker 03:
Absolutely, Your Honor.

[00:12:27] Speaker 03:
We're not arguing that there's a dispute between the parties in terms of the level of skill.

[00:12:33] Speaker 03:
I hope I answered your question, Your Honor.

[00:12:36] Speaker 03:
I see that I'm in my rebuttal.

[00:12:37] Speaker 03:
I'd like to at least start my discussion, because I didn't get a chance to touch on secure domain name service.

[00:12:42] Speaker 03:
So I'm going to try to hit that.

[00:12:45] Speaker 03:
What's important here, and I would like to make sure that I get this point out, is there's very similar issues with respect to this term.

[00:12:52] Speaker 03:
By not requiring that an SCNS requires recognition that a query is requesting a secure computer network address, what the board has relegated in Vernetics's invention is basically the use of conventional DNSs.

[00:13:05] Speaker 03:
But that can't be.

[00:13:07] Speaker 03:
That can't be because the specification absolutely distinguishes conventional DNSs from secure DNSs.

[00:13:15] Speaker 03:
The specification in, for example, the 180 pattern, if you look in column 39 through 41, appendix 472, I believe, around thereabouts, you'll see it starts with a description of conventional DNSs.

[00:13:28] Speaker 03:
Then it turns to drawbacks of those conventional arrangements.

[00:13:33] Speaker 03:
Then it turns to explain what a SDNS is.

[00:13:36] Speaker 03:
It's a specialized DNS.

[00:13:37] Speaker 03:
It's a modified DNS.

[00:13:39] Speaker 03:
And in particular, it explains that when the SDNS receives a query, it's going to determine.

[00:13:45] Speaker 03:
It's going to check.

[00:13:46] Speaker 03:
It's going to recognize.

[00:13:48] Speaker 03:
Is this request for a secure computer network address?

[00:13:51] Speaker 03:
And if it is, it performs these operations that are consistent with what you see in the inventions disclosed in the patent specifications.

[00:13:59] Speaker 03:
But if it isn't,

[00:14:01] Speaker 03:
especially bridging from column 40 to 41 of the 180-Pen, you'll see it sends it to a conventional DNS processing.

[00:14:07] Speaker 01:
What is your definition of non-standard?

[00:14:10] Speaker 03:
That refers to another term, SDN, but I'll address that, Your Honor.

[00:14:14] Speaker 03:
Non-standard is a term that relates to secure domain name.

[00:14:19] Speaker 03:
Now there is no... Apple kind of made the hay saying, hey, look, we never explained what non-standard was.

[00:14:25] Speaker 03:
That was their construction too, not only before the board, but also in the prosecution history disclaimer that they pushed in front of the district court as well.

[00:14:34] Speaker 03:
Same issue with SC&S.

[00:14:35] Speaker 03:
They had a disclaimer that they absolutely represented to the district court the same.

[00:14:41] Speaker 03:
There's a disclaimer here.

[00:14:42] Speaker 03:
The board adopted, including the recognizing aspects that we want in that term, which tracks exactly what Bernetics has in its construction.

[00:14:52] Speaker 03:
They had the same construction in district court pushed it.

[00:14:55] Speaker 03:
With respect to non-standard, their expert agreed that the specification provides this.

[00:15:00] Speaker 03:
In these proceedings, their expert agreed that one of ordinary skill and the art would understand what a non-standard is.

[00:15:06] Speaker 03:
To specifically go to your question, the specification gives examples.

[00:15:11] Speaker 03:
One example is a .scan versus a .com.

[00:15:14] Speaker 03:
It's a different type of non-standard.

[00:15:16] Speaker 03:
It's not a standard description, or I'm sorry, a standard domain name.

[00:15:20] Speaker 03:
And the patent specification gives many examples of this feature.

[00:15:24] Speaker 01:
You're out of time.

[00:15:25] Speaker 01:
We'll give you three minutes for rebuttal, because I suspect we'll probably go over with John Quinn, too.

[00:15:39] Speaker 00:
Thank you, Judge O'Malley.

[00:15:40] Speaker 00:
May it please the Court, John Quinn on behalf of Apple.

[00:15:45] Speaker 01:
Can we start where he started with the difference between a user computer and a client computer?

[00:15:52] Speaker 01:
I mean, it seems to me that the difference between the two is somewhat straightforward, that a user computer requires some kind of user input.

[00:16:03] Speaker 01:
But does it really matter?

[00:16:06] Speaker 00:
Well, in terms of the doesn't really matter, that's actually where I want to start, Judge O'Malley.

[00:16:10] Speaker 00:
Nothing in this appeal turns on any of the claim constructions that they are advocating.

[00:16:16] Speaker 00:
The board here found that the instituted claims of both of these patents, the 274 and the 180,

[00:16:21] Speaker 00:
were all unpatentable in light of Provino and combinations with Provino and Caucci and combinations with Caucci.

[00:16:28] Speaker 00:
And they did so regardless of the claim constructions.

[00:16:32] Speaker 00:
In other words, the board adopted the claim construction, found that those were not met, but said that they were met even with respect to Vernettix's claim construction.

[00:16:42] Speaker 00:
So with respect to client computer, that issue is one that is not relevant to Provino at all.

[00:16:48] Speaker 00:
But we think the board's decision is correct.

[00:16:52] Speaker 00:
A client computer is a computer associated with a client.

[00:16:55] Speaker 00:
And, of course, a client, as our expert explained, citing RFC 1945, is just an application that establishes a connection to send requests.

[00:17:07] Speaker 00:
So the proxy in this case, the client-side proxy, acts as a client.

[00:17:11] Speaker 00:
But regardless, the board found that Kiuchi discloses that either way.

[00:17:17] Speaker 00:
That's at appendix 185 and 251 to 253.

[00:17:21] Speaker 00:
And it's not relevant to Proveno at all.

[00:17:25] Speaker 00:
Similar with respect to virtual private communication link, as the court noted, the specification distinguishes between VPNs and VPN communication links.

[00:17:35] Speaker 00:
You can see that at column 56.

[00:17:38] Speaker 00:
line 8 to 14, column 55, line 9 to 11.

[00:17:44] Speaker 00:
And of course, you have the specification drawing this distinction.

[00:17:50] Speaker 00:
You also have a situation where the board was entitled to find that there was no clear and unambiguous disclaimer by Vernetics.

[00:17:58] Speaker 00:
Now, to be clear, Vernetics has the burden of proof for proving disclaimers.

[00:18:03] Speaker 00:
This court reiterated recently in MIT versus Shire.

[00:18:08] Speaker 00:
As the board noted, Vernetix had specifically argued again and again and again that it had not disclaimed, that there was no disavowal.

[00:18:18] Speaker 00:
That's cited at appendix 2377 with respect to this issue.

[00:18:24] Speaker 00:
And the board noted that if they were serious about limiting this to direct, they could have sought to amend the claims.

[00:18:32] Speaker 00:
That's of course not an option in district court, but it is an option that's available

[00:18:36] Speaker 00:
before the board, and the board noted that at Appendix 198, and that was another significant distinction.

[00:18:45] Speaker 00:
And I think what's going on here with respect to a number of these disclaimer arguments, what Vernetics is trying to do is they're trying to distinguish prior art by saying, well, they necessarily disclaimed that, but at the same time, leave it ambiguous enough that they'll be able to get back in front of a jury

[00:19:02] Speaker 00:
uh... with respect to their infringement reads in the board has in in various proceedings impressed for next what what is your definition of in of an indirect communication and asked mister pallies that very question in a recent proceeding and for next user wouldn't or couldn't answer the question similarly they asked uh... uh... we asked in in one of these proceedings reds is an expert what the difference was and he said it was quote a judgment call that's not the kind of unambiguous

[00:19:30] Speaker 00:
a disclaimer that this court's precedence required.

[00:19:33] Speaker 00:
And in any event, as the board found at appendix 173, Chiucci discloses direct regardless.

[00:19:42] Speaker 00:
Now, Mr. Paley's?

[00:19:43] Speaker 01:
Now, I think that your point that a lot of these things that he's complaining about as it relates to the claim constructions don't relate to Provino at all.

[00:19:51] Speaker 01:
And it does seem that some of the board's findings as it relates to Provino are

[00:19:58] Speaker 01:
clearer, at least, than the findings with respect to Koichi.

[00:20:03] Speaker 01:
Whether you agree with all of them or not is a different question.

[00:20:06] Speaker 01:
But I do have one concern, and that is that with respect to claims 4, 6, 20, 22, 35, 37 of the 180, I'm having a little bit of a hard time with the fact that the board specifically disallowed any reference to Koichi for purposes of that obviousness analysis.

[00:20:28] Speaker 01:
you then rely on your expert for that obviousness analysis, and you cite your expert numerous times, and your expert relies heavily on Chiucci's teaching to support his obviousness conclusion.

[00:20:41] Speaker 01:
So my question is, how do, as to those claims, how is there substantial evidence in the record to support the board's conclusion when what you presented

[00:20:54] Speaker 00:
related to something the board disallowed.

[00:20:56] Speaker 00:
So let me make sure we're on the same page.

[00:20:58] Speaker 00:
You're referring to claims 4, 6, 20, 22, 35, and 37.

[00:21:02] Speaker 01:
Yes.

[00:21:02] Speaker 00:
OK, so those involve Proveno and the, I don't know how to pronounce it, the Gillian reference.

[00:21:09] Speaker 00:
Yes, Ian, I think.

[00:21:10] Speaker 00:
And then there was the issue not with respect to Kiuchi, but with post-year.

[00:21:14] Speaker 01:
I know, but that's my promise, because they said you didn't rely on Kiuchi in your institution decision, but then your expert cites to Kiuchi.

[00:21:21] Speaker 01:
multiple times to say why the teachings of those should be combined.

[00:21:27] Speaker 00:
Sure.

[00:21:28] Speaker 00:
Judge O'Malley, I just want to be clear.

[00:21:29] Speaker 00:
It's not Kyuji.

[00:21:31] Speaker 00:
It's a different reference.

[00:21:32] Speaker 01:
I know that Gi-in is in there.

[00:21:34] Speaker 00:
No, no, no, no.

[00:21:36] Speaker 00:
My point is the reference that you were talking about that you say that you note that we had relied on in our petition and that the board says wasn't relied on by our expert.

[00:21:49] Speaker 00:
Oh, Kosir.

[00:21:49] Speaker 00:
Kosir.

[00:21:50] Speaker 00:
Another KY.

[00:21:51] Speaker 00:
Kosir.

[00:21:51] Speaker 01:
But that's one of my problems.

[00:21:53] Speaker 01:
If the board disallows that reliance, then where do you get to the obviousness conclusion?

[00:22:02] Speaker 00:
Well, I think a couple of points.

[00:22:04] Speaker 00:
First, the board, if I remember correctly, disallows the reliance on co-seer.

[00:22:14] Speaker 00:
But our expert didn't just talk about co-seer.

[00:22:16] Speaker 00:
And I don't think that the board rejected reliance on our

[00:22:21] Speaker 00:
expert altogether.

[00:22:22] Speaker 00:
And in fact, we made the point referenced at Appendix 66.401.402 that what Cociere was doing, which is a textbook, is really just confirmatory or corroborative.

[00:22:36] Speaker 00:
The substance of the petition, of course, referred to the Gillian reference.

[00:22:40] Speaker 00:
And I don't think there was any dispute.

[00:22:42] Speaker 00:
And I think this is an important point.

[00:22:43] Speaker 00:
Maybe this is the answer to your question.

[00:22:46] Speaker 00:
I don't think there's any dispute that Gillian disclosed the quality of service information

[00:22:51] Speaker 00:
That's an appendix 229 to 231.

[00:22:54] Speaker 00:
And so since there's no dispute that that's what Gillian, in fact, would have disclosed, then I think with respect to the issue of obvious, it is exactly the kind of thing that this court recognized in Perfect Web, where it's a very straightforward, would a person of ordinary skill in the art use something that was well-known?

[00:23:13] Speaker 00:
I don't think there was any dispute about that.

[00:23:15] Speaker 00:
Disclose the quality of service information with the method

[00:23:21] Speaker 00:
disclosed by Proveno and I think that the board quite properly answered that correctly.

[00:23:26] Speaker 00:
Now, the board's, again, just to be clear, the board's finding here is, of course, separate and independent from the board's findings with respect to Kiuchi.

[00:23:36] Speaker 00:
Right.

[00:23:37] Speaker 00:
And those provide an independent basis for the unpan ability of most of these claims.

[00:23:43] Speaker 02:
Mr. Quinn, discuss with me for a minute my discussion with Mr. Paley about personal skill in the arts.

[00:23:52] Speaker 00:
Right.

[00:23:52] Speaker 00:
The person of ordinary skill in the art here is, again... They made that argument at 68 of the blue brief.

[00:24:01] Speaker 02:
Right.

[00:24:03] Speaker 02:
Tell me, clarify it for me, any more than Mr. Paley did.

[00:24:07] Speaker 00:
Sure.

[00:24:10] Speaker 00:
If I'm recalling correctly, again, I don't think that there was fundamentally a dispute about what a person of ordinary skill in the art was.

[00:24:17] Speaker 00:
And that's why, of course, the board, I think, didn't have a need to go into

[00:24:21] Speaker 00:
determining what the person of ordinary skill and the art would be.

[00:24:25] Speaker 00:
They then argue that the board somehow made a mistake.

[00:24:28] Speaker 00:
And we make the point, well, you didn't raise this in front of the board.

[00:24:32] Speaker 02:
Well, what they say towards the end of that section is that the board's analysis does not explain why one of ordinary skill and the art would have combined.

[00:24:42] Speaker 02:
Now, above that, they do say

[00:24:47] Speaker 02:
obviousness requires a determination of ordinary skill.

[00:24:51] Speaker 02:
And clearly, that's blown away.

[00:24:53] Speaker 02:
But their second part of their argument seems to be what Mr. Paley's tried to square it with.

[00:24:59] Speaker 02:
And that was, well, they didn't explain it.

[00:25:03] Speaker 00:
And I think that, again, the board here has as... And so he says, we have to raise that.

[00:25:08] Speaker 02:
They didn't explain it.

[00:25:10] Speaker 00:
Right.

[00:25:10] Speaker 00:
And I think that the board's decision here, of course, is, depending on which

[00:25:16] Speaker 00:
I guess which point we're talking about, some of the obviousness inquiries are points that frankly that the vernetics did not make independent arguments about.

[00:25:32] Speaker 00:
So for example, with respect to claim 18, they make the argument that the board doesn't explain anything vis-a-vis the jus reference.

[00:25:43] Speaker 00:
But the fact is, and it's not in the appendix, but the patent owner response in its entirety in addressing that just simply says, claim 18 depends from independent claim one.

[00:25:54] Speaker 00:
Zhu doesn't remedy the deficiencies already discussed for independent claim one.

[00:25:58] Speaker 00:
And that's their whole argument.

[00:26:00] Speaker 00:
So I think the board goes through and responds to the arguments that vernetics actually makes.

[00:26:06] Speaker 00:
And so similarly, and we'll get to this point I think in another proceeding there,

[00:26:12] Speaker 00:
There are other places where they say, oh, well, the board didn't address this argument about this particular limitation.

[00:26:18] Speaker 00:
When, in fact, they didn't make an independent argument with respect to that particular limitation, they referred back to other arguments they had made about other limitations.

[00:26:27] Speaker 00:
And the board, of course, addressed those head on.

[00:26:29] Speaker 00:
And that's a common pattern here in these proceedings.

[00:26:33] Speaker 00:
I do want to come back to one of them.

[00:26:34] Speaker 04:
Let me ask you a question before your time is up.

[00:26:37] Speaker 04:
The district court, remind me, in the district court, is 101 an issue?

[00:26:43] Speaker 00:
I don't believe 101 is an issue in the district court with respect to these references.

[00:26:51] Speaker 00:
None of these patents are currently at issue in district court.

[00:26:57] Speaker 00:
I'm sorry, Judge Mayer.

[00:26:59] Speaker 00:
That was the second part of your question.

[00:27:02] Speaker 00:
Well, the other cases, they are.

[00:27:06] Speaker 00:
But is there a 101 in any of them?

[00:27:07] Speaker 00:
I'm not aware of there being a 101 issue that's been raised with respect to any of these patents, because as I said, none of these patents are still pending in the district court, or still at issue in district court.

[00:27:21] Speaker 00:
And as far as I know, I don't believe it was raised in the district court, but I'm not 100% sure of that.

[00:27:28] Speaker 00:
I did want to come back to a point that Mr. Paley's made with respect to Kiuchi and his discussion about what was before this court in Cisco, because

[00:27:37] Speaker 00:
What was the issue before this court in the Cisco case was simply on the Jamal standard, whether or not there was substantial evidence to support a jury finding under the clear and convincing standard that applies in district court.

[00:27:51] Speaker 00:
What you have here is an entirely different record.

[00:27:55] Speaker 00:
You have a different read in terms of the anticipation and obviousness reads.

[00:28:04] Speaker 00:
And of course, in the district court, there was no dispute over the issue of direct, whereas of course, that is an issue here.

[00:28:11] Speaker 00:
And the board properly found, given that they had not shown what exactly was in and what exactly was out, that there was no reason to read that in.

[00:28:22] Speaker 00:
And that's one other point that I want to make with respect to secure domain name server.

[00:28:28] Speaker 00:
Their whole argument hinges on the notion that they have disclaimed anything but a

[00:28:33] Speaker 00:
They have disclaimed conventional servers.

[00:28:36] Speaker 00:
I think the court found that properly to be ambiguous.

[00:28:40] Speaker 00:
If you just flip it around, think about it from an infringement perspective for a second.

[00:28:45] Speaker 00:
If they assert, well, you infringe because you do something more than a conventional DNS scheme would do.

[00:28:54] Speaker 00:
What?

[00:28:54] Speaker 00:
What more?

[00:28:55] Speaker 00:
They don't identify, and that's really one of the things that the board had significant issue with.

[00:29:00] Speaker 00:
They identify various things at different points

[00:29:03] Speaker 00:
in the specification, all of which are different, that they say, well, this is one example of a possible additional functionality.

[00:29:11] Speaker 00:
Here's an example of another additional functionality.

[00:29:13] Speaker 00:
But they're not trying to limit their claims to those.

[00:29:17] Speaker 00:
They're not disclaiming things other than those functionality.

[00:29:20] Speaker 00:
In fact, they're very clear about this.

[00:29:21] Speaker 00:
At page 36 of their blue brief, quote, frenetics disclaim not a particular feature, but any SDNS does not perform any additional features.

[00:29:30] Speaker 00:
That doesn't serve the notice function.

[00:29:32] Speaker 00:
The board found that if they were serious about disclaimer, and they found this with respect to secure domain name server, it's found this with respect to virtual private communication, virtual private network communication link.

[00:29:44] Speaker 00:
If you're serious about disclaimer, you have a tool here in front of you in an ongoing proceeding, and that is to amend your claims.

[00:29:51] Speaker 00:
And the board made that point at appendix 127 and also at appendix 198.

[00:29:57] Speaker 00:
If the court has further questions on these, I'm happy to address them.

[00:30:04] Speaker 01:
No, I think you're OK.

[00:30:06] Speaker 00:
Thank you, Judge O'Malley.

[00:30:08] Speaker 01:
And you did just about use your extra three minutes.

[00:30:11] Speaker 00:
Thank you.

[00:30:24] Speaker 03:
Just a few points, Your Honors.

[00:30:26] Speaker 01:
Well, let me ask you a few things.

[00:30:29] Speaker 01:
I mean, Mr. O'Quinn is correct with respect to Claim 18.

[00:30:32] Speaker 01:
I mean, you complained that the board didn't make additional findings, but you never made an additional argument.

[00:30:38] Speaker 03:
Yeah.

[00:30:39] Speaker 03:
Our position on Claim 18 with respect to the zoo references that it's not our burden.

[00:30:44] Speaker 03:
It's the board's burden to show and explain their obviousness position.

[00:30:49] Speaker 03:
And our position is that the board just didn't do that.

[00:30:53] Speaker 03:
the cross of that position.

[00:30:54] Speaker 01:
But at some point, if you're the decider, if you're the trier of fact, you have to be able to rely on where the parties tell you the disputes are, right?

[00:31:04] Speaker 03:
I would agree with that.

[00:31:07] Speaker 03:
But in this case, we still stand by the position that we have with respect to claim meeting.

[00:31:12] Speaker 03:
We just think the board didn't explain why the combination of the two references support the reject or the

[00:31:23] Speaker 03:
the unpatentability finding with respect to that claim.

[00:31:25] Speaker 01:
All right.

[00:31:26] Speaker 01:
And then let's talk about this issue of the board's disallowance of the Cosir reference, which I accidentally referred to as the Kiuchi reference.

[00:31:35] Speaker 01:
But they disallowed the Cosir reference.

[00:31:37] Speaker 01:
And you're right that Apple's expert did rely on Cosir repeatedly.

[00:31:42] Speaker 01:
But having said that, it is true that he also relied on Gillian, didn't he?

[00:31:48] Speaker 03:
That's correct, Your Honor.

[00:31:51] Speaker 03:
But the problem is,

[00:31:53] Speaker 03:
Again, the expert's entire position relies on the use of COSIR to bridge the gap between Gillian and I believe it's Chiucci.

[00:32:06] Speaker 03:
I may be confused.

[00:32:06] Speaker 03:
But the primary reference in Gillian.

[00:32:08] Speaker 01:
Provino.

[00:32:09] Speaker 03:
Thank you, Provino.

[00:32:10] Speaker 03:
But we also have arguments that even if you want to consider Provino and Gillian, it's still there isn't substantial evidence even to support that combination.

[00:32:19] Speaker 03:
Because the way the Gillian reference is being applied

[00:32:23] Speaker 03:
doesn't track to what Gillian is teaching and what the board is saying and how you would use quality of service type of, I'm sorry, that's a different issue.

[00:32:34] Speaker 03:
Yeah, the virtual circuit issues with respect to Gillian.

[00:32:37] Speaker 01:
I mean, you don't dispute that the board actually made those findings as it relates to Gillian.

[00:32:42] Speaker 01:
You're just saying there wasn't enough evidence to support it?

[00:32:45] Speaker 03:
With respect to, we still have our initial argument with respect to Coase here saying that there's an error here because

[00:32:52] Speaker 03:
They relied on the position of Apple's experts, required the use of COSIR, which COSIR was not used.

[00:32:59] Speaker 03:
So there's no support there.

[00:33:01] Speaker 03:
And then the substantive argument, yes, we believe that the references themselves do not support the position.

[00:33:08] Speaker 01:
I'll give you a little time to get to the points you wanted to get to.

[00:33:11] Speaker 03:
Real quick, and I'll try to summarize them real quick.

[00:33:13] Speaker 03:
But I wanted to touch on this Bovino aspect.

[00:33:15] Speaker 03:
I heard her honor kind of mention this.

[00:33:18] Speaker 03:
And I want to be clear that there are positions

[00:33:20] Speaker 03:
that are very dispositive with respect to QC and with respect to Proveno.

[00:33:24] Speaker 03:
With respect to Proveno, this secure domain name service term is dispositive.

[00:33:29] Speaker 03:
If you look under both our construction, which is the same as Apple's construction that it pursued in district court, you heard Apple's counsel kind of run away from that again, but that's the same aspects in terms of what does it mean to be different.

[00:33:44] Speaker 03:
It's in the same construction that they presented in district court.

[00:33:49] Speaker 03:
Secure domain name.

[00:33:50] Speaker 03:
is another term that's relevant to Proveno.

[00:33:53] Speaker 03:
Access request message is based on the board's own construction.

[00:33:59] Speaker 03:
Even under SDNS, even under the board's construction, we have an argument.

[00:34:04] Speaker 03:
We think that the distinction, the specification disclaimer aspect, where there's a clear distinction that is in the specification between conventional and SDNS.

[00:34:13] Speaker 03:
Regarding the direct communication and the references to Cisco, we think that Cisco

[00:34:19] Speaker 03:
decision is on point.

[00:34:21] Speaker 03:
It is relevant because it does relate to QG.

[00:34:24] Speaker 03:
It does relate to a similar type of use of QG between the communications between the CSP and the SSP client-side proxy, service-side proxy, and how QG is being read.

[00:34:36] Speaker 03:
So we believe the Cisco opinion is instructive in this regard.

[00:34:40] Speaker 01:
And then with respect to... But you can see it was a totally different procedural posture.

[00:34:47] Speaker 03:
Procedural posture, we think a couple things, Your Honor.

[00:34:51] Speaker 03:
It wasn't completely different evidence, first of all.

[00:34:53] Speaker 03:
You know, we have the same reference at hand.

[00:34:56] Speaker 03:
We have similar testimony with respect to positions that how they read QG and how our expert reads QG.

[00:35:04] Speaker 01:
But, I mean, it's a very strict analysis when you're talking about whether or not a JAMO was appropriately denied.

[00:35:11] Speaker 03:
We would agree with that, Your Honor, but we think it's still, it provides

[00:35:15] Speaker 03:
It's very consistent with where we're at in terms of how QG is being read in terms of a limitation, a direct communication limitation that's directly at issue there and here with respect to a very similar term, VPN and VPNCL.

[00:35:31] Speaker 01:
OK.

[00:35:32] Speaker 01:
Your time's up.

[00:35:33] Speaker 03:
Thank you, Your Honor.