[00:00:04] Speaker 02:
You shouldn't take it personally that he's throwing your briefs away.

[00:00:06] Speaker 02:
Actually, they're going in the shredder.

[00:00:10] Speaker 02:
You don't know what we have back here.

[00:00:12] Speaker 02:
All right.

[00:00:13] Speaker 02:
The next case before the court is 161480, again, Vernettix Inc.

[00:00:18] Speaker 02:
versus Apple Inc.

[00:00:21] Speaker 02:
Now we're going back to you, Mr. Tomavie.

[00:00:23] Speaker 02:
And again, you want three minutes, right?

[00:00:26] Speaker 01:
Yes, Your Honor.

[00:00:32] Speaker 01:
Minus, of course, what your brother used up.

[00:00:39] Speaker 01:
If you want to enforce that tracer, Judge Wallach, I will not object.

[00:00:44] Speaker 02:
Yes.

[00:00:45] Speaker 02:
Somebody in my office said, are we going to just have these argued altogether?

[00:00:48] Speaker 02:
I said, there is no way.

[00:00:50] Speaker 02:
It's hard enough to keep it straight as it is.

[00:00:53] Speaker 02:
OK.

[00:00:55] Speaker 01:
Joanna, may it please the court.

[00:00:57] Speaker 01:
The board's decision below is premised on erroneous claim construction, which we discussed in an earlier appeal.

[00:01:02] Speaker 01:
The decision also fundamentally misreads the references.

[00:01:06] Speaker 01:
With respect to both Bezer and Provino, the board impermissibly combined multiple devices to find anticipation of a single claim devices, even though the references did not disclose such combination.

[00:01:17] Speaker 01:
For Bezer, the board's combination of devices 14 and 24 and 16 and 26 would defeat the very purpose of Bezer's system, which uses devices 14 and 16 to keep private the identity of devices 24 and 26.

[00:01:32] Speaker 02:
Putting aside the claim construction question, Besser does disclose that the different devices can be physically combined, right?

[00:01:42] Speaker 01:
Besser disclosed at one point that it does disclose that, in fact, you can connect, let's say, the telephone to the other device.

[00:01:48] Speaker 01:
But the daily purpose still, if you look at the functionality of Besser, the purpose of Besser, the design, is to keep the identity and the IP addresses of 24 and 26 private.

[00:01:59] Speaker 01:
So even though the devices can be physically connected,

[00:02:03] Speaker 01:
That doesn't actually mean that in functionality, it is permissible for the purpose of determining whether the claims were anticipated to combine the mapping of devices 14 and 24 onto one device and 16 and 26 onto the second device.

[00:02:18] Speaker 01:
And second, also, if the court looks at Beza, the Beza does not disclose the claim sending and receiving features.

[00:02:24] Speaker 01:
Because there is no single device in desert that performs both of those functions.

[00:02:28] Speaker 02:
But I mean, that still makes this case very different from the Net Money or even the Blue Calypso, right?

[00:02:35] Speaker 01:
Joanna, Net Money, I would say that actually the principle we're advocating is the principle that was endorsed by this course in Net Money, Blue Calypso, KineMetal.

[00:02:44] Speaker 01:
The case is different, I'll admit, from Net Money.

[00:02:46] Speaker 01:
But also, it's also different from Blue Calypso in a way that I think helps us.

[00:02:52] Speaker 01:
Because in Blue Calypso,

[00:02:53] Speaker 01:
there is clear indication that the references contemplated the combination, except perhaps for one, for one particular aspect.

[00:03:00] Speaker 01:
So in this case, and our expert testified, there is no indication that Bezer, that Bezer contemplated the combination of 14 and 24 and 16 and 26 in order to find the, in order to find actually the function that is, that is claimed in our pattern.

[00:03:18] Speaker 01:
You want to turn to Provena, which is a different reference.

[00:03:21] Speaker 01:
In Provena, there is no device that is associated with both secure and unsecure name.

[00:03:26] Speaker 01:
And the board found such association for server 31, but that device has no unsecure name.

[00:03:31] Speaker 01:
And no such name for this device is contained on name server 17.

[00:03:36] Speaker 01:
Finally, as to Metaway, the board adopted a new ground of rejection when it asserted that the call message constitutes the claimed message of a desire to securely communicate.

[00:03:46] Speaker 01:
The examiner mapped the prior connect message to the claim limitation.

[00:03:50] Speaker 01:
And the call message cannot constitute the claim message in any event because it is subsequent to and separate from any request for communication in that way.

[00:03:59] Speaker 01:
The call message is the actual communication between the two devices.

[00:04:03] Speaker 01:
And so therefore, at least a remand to the board would be required on that issue.

[00:04:10] Speaker 01:
Turning to claim construction.

[00:04:12] Speaker 02:
Wait.

[00:04:12] Speaker 02:
So you're saying the call message can be the call itself?

[00:04:16] Speaker 02:
even though the call can be rejected?

[00:04:19] Speaker 01:
Your Honor, the call message is the call itself.

[00:04:21] Speaker 01:
Now I would actually know that Apple makes the argument about the reject message, which can be received back.

[00:04:26] Speaker 02:
Or the busy message.

[00:04:28] Speaker 01:
Or the busy message.

[00:04:29] Speaker 01:
Those arguments, in fact, were not presented to the board.

[00:04:31] Speaker 01:
So if this court thinks that those, the reject and the busy signals, actually indicate some different determination, I think the board should be entitled to make the determination in the first instance.

[00:04:42] Speaker 01:
But if this court looks at how the examiner construed what the examiner said about the connect message, it is the connect message that the examiner acknowledged was a message of the desire to communicate.

[00:04:52] Speaker 01:
So once that message is over, then the call message is a separate message that is the actual communication.

[00:04:59] Speaker 01:
So there is a clear distinction between the connect message and the call message in that way.

[00:05:09] Speaker 01:
Because the call message is the actual call between the two devices at the end.

[00:05:16] Speaker 01:
And in addition for Matterway, we also do have an argument that Matterway does not disclose the claim secure name and non-secure name.

[00:05:23] Speaker 01:
Certainly, we argue that it does not disclose it under our construction of a secure name, which requires resolution by secure domain name service, and also which facilitates the establishment of a secure communication link.

[00:05:34] Speaker 01:
But we also do argue that, in fact, it does not disclose it even under the board's rationale

[00:05:39] Speaker 01:
Because there are no aliases in Mettaway that, in fact, are unsecure.

[00:05:45] Speaker 01:
Both the aliases that they teach in Mettaway behave in the same fashion.

[00:05:51] Speaker 01:
And turning you on to the claim construction, the reason we argue that the board construed the secure name and unsecured name incorrectly is because, by reference to the specification, the entire design of the system with respect to those names

[00:06:09] Speaker 01:
looks at whether or not there is a resolution by secure domain name system, and whether or not there is an establishment of a secure communication link.

[00:06:19] Speaker 01:
So the board's construction, which said that the secure name is simply a name that connotes some level of security, is entirely divorced from the specification.

[00:06:30] Speaker 02:
But there are protective measures in Madaway that would denote security, right?

[00:06:38] Speaker 02:
You're talking about a firewall.

[00:06:40] Speaker 01:
You know, there is a firewall.

[00:06:42] Speaker 01:
So there is a protective measure in firewall.

[00:06:44] Speaker 01:
Now, we would say under our claim construction that actually that is not sufficient to make that the secure name.

[00:06:49] Speaker 01:
But more importantly, there is also no unsecure name in Mattaway.

[00:06:54] Speaker 01:
Because there is no, because the two names in Mattaway that the board asserted was secure and unsecure, they're actually functionally identical.

[00:07:03] Speaker 01:
And this was a discussion at the appendix 25 and 26

[00:07:07] Speaker 01:
to which we responded now for our opening brief on pages 57 and 60, demonstrating that argument.

[00:07:15] Speaker 01:
I would like to address the question a little bit more, the question that I mentioned that Desir actually does not anticipate the claim receiving and sending functions.

[00:07:23] Speaker 01:
And the reason is because there is no single device that performs that.

[00:07:26] Speaker 01:
There is no sending function because the tunneling association is formed solely between devices 24 and 26.

[00:07:33] Speaker 01:
And the board's mapping actually considered devices 14 and 24 and 16 and 26 together.

[00:07:39] Speaker 01:
But more importantly, there is no receiving function, because the message in there, so the message that the board said is equivalent to the message of a desire to securely communicate, is received at device 30.

[00:07:50] Speaker 01:
And it is acted by the trusted third party device 30.

[00:07:53] Speaker 01:
So there is no message that is actually received by either by the first device or the second device.

[00:08:05] Speaker 02:
But that really depends on our concluding that there shouldn't be a combination of the terminating network devices, right?

[00:08:16] Speaker 01:
Joanna, that is correct.

[00:08:17] Speaker 01:
We think with respect to the sending function, it does depend on your determination, which we submit you should make, that the board impermeably combined the two devices to find the first device and the second device.

[00:08:31] Speaker 01:
We think that with respect to the receiving function,

[00:08:34] Speaker 01:
Even under the board's mapping, the message is received at device 30.

[00:08:40] Speaker 01:
It is not received at either of the other two devices.

[00:08:42] Speaker 01:
So we think that with respect to receiving, our argument is, in fact, stronger.

[00:08:46] Speaker 01:
And the court can even hold for us on that point, even if it accepts the board's mapping.

[00:08:54] Speaker 02:
But in this instance, though, you've got this third party network device that is acting as a negotiator, right?

[00:09:03] Speaker 01:
Yes, you are, and it does.

[00:09:05] Speaker 02:
So how is there no receiving?

[00:09:08] Speaker 02:
I'm not following that.

[00:09:09] Speaker 01:
There is a receiving because the claims actually require that there is receiving at the network address corresponding to the secure name associated with the first device of the message through Design Security Communicate.

[00:09:22] Speaker 01:
And the message in that is received by device 30.

[00:09:25] Speaker 01:
It is not received by the first device.

[00:09:27] Speaker 01:
whether or not you consider that first device to be device 26 or a combination of devices 16 and 26.

[00:09:33] Speaker 01:
So we think that the receipt by third-party device 30 of the message actually interrupts that chain.

[00:09:42] Speaker 01:
And so that particular receiving claim limitation is not being met.

[00:09:52] Speaker 01:
Ioanna, the other issue I would like to address briefly is that, with respect to claims 1011, Vessar Stundling Association is not set up, as we argued, at the time that the LH network address is received.

[00:10:04] Speaker 01:
So we think there is no anticipation with respect to that claim.

[00:10:08] Speaker 01:
This is something we are now opening brief at pages 54 and 55.

[00:10:13] Speaker 01:
And also, we think that with respect to Provena, there is no disclosure of a secure name.

[00:10:20] Speaker 01:
Certainly not at our construction, but also there is no disclosure on even the board's construction.

[00:10:25] Speaker 01:
Because if a court looks at nameservicers 17 and 32, they operate in the same manner.

[00:10:30] Speaker 01:
Neither of those servers can resolve secure names.

[00:10:37] Speaker 01:
And there is no, there is no, and neither of those services actually supports establishing a secure communication link, because by that point, the secure connection is already established.

[00:10:48] Speaker 01:
Unless support has other questions?

[00:10:51] Speaker 02:
No, thank you.

[00:10:53] Speaker 02:
Thank you.

[00:10:54] Speaker 02:
We'll save the rest of your time for a rebuttal.

[00:11:10] Speaker 00:
Thank you again, Judge O'Malley.

[00:11:11] Speaker 00:
May it please the court?

[00:11:12] Speaker 00:
In this re-examination proceeding, the examiner found the claims of the 181 patent were all unpatentable, maintaining 11 separate rejections involving six different primary references on both anticipation and obviousness grounds.

[00:11:26] Speaker 00:
The PTAP affirmed, and in so doing, only needed to reach three of those grounds, finding that all of the claims were anticipated either by Beezer, Madaway, or Provino, and most of them anticipated by all three prior references.

[00:11:39] Speaker 00:
Now, as in both of the prior proceedings before the court, they raised several claim construction arguments.

[00:11:46] Speaker 00:
But once again, these claim construction arguments do not matter, because the board found that the claims were anticipated even under Vernetics's constructions.

[00:11:57] Speaker 00:
And you see that with respect to secure name and unsecured name at appendix 9.

[00:12:02] Speaker 00:
Also, because of the overlap, if the court agrees as to the unpatentability over, say, Provino and Madaway,

[00:12:08] Speaker 00:
which are only briefly addressed in Vernetics's briefs.

[00:12:12] Speaker 00:
You don't even have to address anticipation by Beezer.

[00:12:15] Speaker 00:
And similarly, if you found by Beezer and Madaway, you wouldn't have to address as to Provena.

[00:12:21] Speaker 00:
Now, my colleague started with this issue of a combination of devices.

[00:12:26] Speaker 00:
And there's a couple of things that I just want to point out to the court, both from Beezer's specification and from the 181 specification.

[00:12:33] Speaker 00:
First,

[00:12:34] Speaker 00:
The Beezer itself specifically contemplates and discloses that devices are going to be associated with one another.

[00:12:40] Speaker 00:
It says it very explicitly at column 11, lines 26 to 28, column 22, lines 14 to 16.

[00:12:48] Speaker 00:
And that's entirely consistent with the 181 specification.

[00:12:51] Speaker 00:
The 181 specification contemplates that a device need not be a particular limited physical construct, but can include a combinations

[00:13:01] Speaker 00:
quote, for convenience or not.

[00:13:03] Speaker 00:
And you see that reflected at column 40.

[00:13:05] Speaker 02:
So is it enough to be associated, or does it have to teach that they can actually be combined into the same device?

[00:13:14] Speaker 00:
Sure, Judge O'Malley.

[00:13:15] Speaker 00:
So there are two reasons why Vernettix is wrong here.

[00:13:17] Speaker 00:
They're wrong on the facts, because it's enough that the devices be associated that the claim terms themselves talk about being associated.

[00:13:26] Speaker 00:
They don't require that it be uniquely assigned to.

[00:13:29] Speaker 00:
So the fact is the network address of 16 is the network address corresponding to the secure name associated with 26.

[00:13:39] Speaker 00:
And second, under this court's teachings in Blue Calypso and KineMetal, of course, the functionality doesn't have to be within the same box.

[00:13:49] Speaker 00:
And here, of course, it performs exactly the same functions.

[00:13:54] Speaker 00:
And again, the 181, if you look at column

[00:13:57] Speaker 00:
48, lines 67 to column 50, line 1, talks about connecting through an edge router, and that's analogous to what you have here.

[00:14:07] Speaker 00:
And the same point's made at column 51, line 20.

[00:14:12] Speaker 00:
So I think this issue of combination is a little bit of a red herring, because again, all the claims require is that one be associated with the other, and they plainly are.

[00:14:22] Speaker 00:
And even if that weren't enough,

[00:14:24] Speaker 00:
The court, of course, has made clear that functionality doesn't have to be limited to a particular black box, particularly when you're talking about what this court described in Williamson versus Citrix as a non-sword-like device.

[00:14:37] Speaker 00:
And so this case also is, I think, fundamentally different from Net Money Inn, because you're not talking about combining things from different embodiments.

[00:14:45] Speaker 00:
It's all one embodiment of Beezer or one embodiment of Proveno.

[00:14:49] Speaker 00:
And it's literally where you draw the box, assuming that you even get to that issue.

[00:14:54] Speaker 02:
Do you agree that the board really necessarily relied on the combination?

[00:14:59] Speaker 00:
Well, I think that the board necessarily relied, at a minimum, on the association between the two.

[00:15:06] Speaker 00:
So whether or not you have the board having to rely on a combining of the features, or just simply the fact that the Proveno secure server 31S is necessarily associated with firewall 30,

[00:15:21] Speaker 00:
Because if you want to send something to 31S, you have to address it to 30.

[00:15:25] Speaker 00:
Either way, I think the board's decision is amply supported in those regards.

[00:15:31] Speaker 00:
With respect to Proveno, just briefly, even accepting the vernetics' views about a secure name, which, once again, with secure name and other limitations, they're trying to bootstrap other limitations from what are very broad claims

[00:15:48] Speaker 00:
claims that were prosecuted while they were in litigation against my client.

[00:15:53] Speaker 00:
And they're trying to bootstrap in order to save those claims.

[00:15:56] Speaker 00:
But regardless, the board found that Proveno satisfied the requirement that if you had to have additional functionality, even beyond a conventional name server, that that additional functionality was provided, that they did more than the conventional scheme, precisely because name server 32

[00:16:15] Speaker 00:
returned it to the firewall.

[00:16:16] Speaker 00:
The firewall then returned it encrypted to the requester, which is different from the conventional scheme, even if you want to say that they had limited themselves that way.

[00:16:29] Speaker 00:
And then with respect to Madaway, other than their claim construction points, which again, I think are readily met here for the reasons the board identified,

[00:16:45] Speaker 00:
Verbenaix makes essentially three arguments, that the board didn't address the secure name service of claim two.

[00:16:51] Speaker 00:
That's similar to the issue that we discussed in the last argument.

[00:16:56] Speaker 00:
The board did specifically address all of the arguments that they had made with respect to the issues with respect to claim two, because they didn't raise something separate about secure name service.

[00:17:10] Speaker 00:
And the board addressed what they did raise.

[00:17:16] Speaker 02:
Your response to the argument, the pretty basic argument that while it wasn't their burden, it was your burden to establish that something was invalid and the board shouldn't find something invalid if there's no basis for doing that, regardless of what they argued.

[00:17:32] Speaker 00:
Sure.

[00:17:32] Speaker 00:
Well, the basic argument here is that the examiner found the claim to was invalid and explained that.

[00:17:37] Speaker 00:
And under 37 CFR 41.77,

[00:17:41] Speaker 00:
The board is simply, when it affirms in a general affirmance with respect to a particular reference, it's affirming the examiner's reasoning with respect to that reference.

[00:17:53] Speaker 00:
And I would also say that the board specifically pointed to our arguments and referenced our arguments, which did, of course, explain why those limitations were satisfied.

[00:18:05] Speaker 00:
The main point that my colleague made with respect to Madaway

[00:18:09] Speaker 00:
was on the treatment of the message of the desire to securely communicate.

[00:18:16] Speaker 00:
And they don't argue that Madaway fails to disclose that limitation.

[00:18:21] Speaker 00:
They just argue that the board on appeal affirmed on different grounds from the examiner's rejection.

[00:18:27] Speaker 00:
And that's just simply not so.

[00:18:28] Speaker 00:
If you look, and you can compare it yourself, at appendix 2559, that's the examiner's discussion of the issue.

[00:18:38] Speaker 00:
and where the examiner recognized that the first communication to the second device was in the form of the call message and the board makes the same point at appendix 27 to 28 because the communications involving the connect message that the examiner refers to prior to that were not messages with the end device, they were messages with the global server.

[00:19:00] Speaker 00:
So the board's reasoning at appendix 27 to 28 is exactly the same as what the examiner found at 25

[00:19:08] Speaker 00:
I believe I've now addressed all of the issues that were raised by my colleague.

[00:19:14] Speaker 00:
If there are questions that the court has on these or other points, I'm, of course, happy to address them.

[00:19:19] Speaker 00:
But the board found all of these claims to have been anticipated on multiple grounds, and that decision respectfully should be affirmed.

[00:19:28] Speaker 02:
Anything more?

[00:19:30] Speaker 02:
Okay, thank you.

[00:19:31] Speaker 02:
Thank you.

[00:19:39] Speaker 01:
You're not arguing the fourth case today, are you, Mr. O'Quinn?

[00:19:44] Speaker 01:
No, you are not.

[00:19:46] Speaker 01:
Two are quite enough.

[00:19:50] Speaker 01:
You are on several points in response to Mr. O'Quinn's comments.

[00:19:54] Speaker 01:
With respect to BASA and the word associated, we do acknowledge that, obviously, the claim language used the term associated.

[00:20:02] Speaker 01:
But again, our central point is twofold.

[00:20:05] Speaker 01:
One is for BASA.

[00:20:06] Speaker 01:
the court should look at the fundamental design of BASA and it is to hide, to keep private the identities of devices 24 and 26.

[00:20:14] Speaker 01:
So that shows that this is, that despite the associated language in the claims, the combination of 14 and 24 and 16, 26 just runs contrary to the very design of BASA.

[00:20:26] Speaker 01:
So this is not an instance like Net Money, like Blue Collipse, like Kenny Mantle, where the prior art actually contemplated the possibility of a combination.

[00:20:34] Speaker 01:
The very purpose of Vassar is to keep those devices separate in order to keep private devices, the identity of devices 24 and 26.

[00:20:44] Speaker 01:
With respect to Provena, our argument, as I mentioned, our argument on that is that, first of all, there is also a similar combination of the multiple devices that was not disclosed in Provena.

[00:21:00] Speaker 01:
But more importantly, name server 17, that the board said is actually the unsecured name for server 31S, is really not that.

[00:21:09] Speaker 01:
That finding is not supported by evidence.

[00:21:11] Speaker 01:
Because actually, what it is, it's the IP address of firewall 30.

[00:21:14] Speaker 01:
It's not an alternative unsecured name for server 31.

[00:21:18] Speaker 01:
And that argument is presented in our reply brief on page 28, as well as opening brief around page 65.

[00:21:25] Speaker 02:
Let me go back a minute.

[00:21:26] Speaker 02:
Are you saying, I mean, Proveno doesn't have,

[00:21:30] Speaker 02:
You're not saying that Proveno teaches away from the combination, are you?

[00:21:36] Speaker 01:
No, we're not saying that Proveno teaches away from the combination, but we're saying that actually, first of all, again, there is no disclosure in Proveno that Proveno contemplates the combination.

[00:21:47] Speaker 01:
But more importantly, I think our best argument in Proveno is that there is no unsecure name that is associated with the device.

[00:21:55] Speaker 01:
And that Nameservice 17 is not an unsecured name.

[00:21:59] Speaker 01:
So we think that that is the best argument that we have for Proveno.

[00:22:05] Speaker 01:
With respect to Mattaway, actually, it is not correct that we only argue the new ground of rejection.

[00:22:12] Speaker 01:
We do argue it.

[00:22:12] Speaker 01:
But we also did present a substantive argument.

[00:22:15] Speaker 01:
And this is in our opening brief on page 62 that, as I mentioned in my opening statement,

[00:22:21] Speaker 01:
that the call message cannot be the message of a request to securely communicate.

[00:22:26] Speaker 01:
It is a separate, substantively different communication between devices.

[00:22:30] Speaker 01:
So we did present the argument that the board's conclusion that constitutes a message of a desire to securely communicate is not supported by evidence in that respect.

[00:22:42] Speaker 01:
Unless the court has other questions.

[00:22:43] Speaker 02:
No, that's OK.

[00:22:46] Speaker 02:
Thank you.

[00:22:47] Speaker 01:
Thank you very much.

[00:22:47] Speaker 02:
All right.

[00:22:49] Speaker 02:
Thank you.

[00:22:49] Speaker 02:
All these cases will be submitted.