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Morning our first case for today is two zero one six dash two three seven one A.I.P.

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acquisition versus Cisco.

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Mr. Is it the leg us.

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Please proceed.

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May it please this honorable court?

[00:00:33] Speaker 01:
Good morning.

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I'm Francisco Villegas, counsel for AIP acquisition.

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This morning, my colleagues are with me, Chi Ang and Elizabeth Bernard.

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When you get comfortable, counsel, will you speak up a little?

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Oh, I'm sorry.

[00:00:47] Speaker 05:
Thank you.

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This case is about three things.

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The meaning of internet protocol, the meaning of conversion, and whether those two key terms are present in the prior record evidence.

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I'd like to begin with the meaning of internet protocol.

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One of the two important claim construction terms in this particular case.

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And the claim language and the specification show that internet protocol only has one meaning.

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And that meaning is

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the IP of TCP, IP.

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Your specification doesn't even use the word internet protocol, does it?

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It says internet program, right?

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Your Honor, you're correct that it says internet program.

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That's a typographical error.

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It means should read internet protocol.

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Has everybody in the case agreed that's a typographical error?

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I believe so.

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The p-tab

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said so much.

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I do not believe that Cisco disagrees.

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Cisco can answer that for themselves.

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Do you have an appendix site for where the PTO said that it was a typographical error?

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I can get that for you in a moment, Your Honor.

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And let me follow up on your question a little more.

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You're correct that the term internet protocol

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is not specifically defined in the patent.

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There is no language in the patent that says internet protocol means the IPv4 or something to that extent.

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However, that doesn't mean that internet protocol is not defined in the totality of the patent.

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So, for example, first there's one internet protocol.

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There's not multiple internet protocols.

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And we see that, for example, in the claim language.

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The claim language is specific in that, if I may, claim one says performing a first conversion, converting the transmission from a first format to a second format, the second format being internet protocol.

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And claim 16 says it is internet protocol.

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It's important to realize that

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The claim language itself doesn't say an internet protocol, or such as an internet protocol, comprising an internet protocol, or any other number of open-ended transitions.

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Do I understand correctly, though, that there are different kinds of internet protocols?

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For example, one of the prior references refers to ST, I believe, as being an internet protocol, right?

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You're correct, Your Honor, that there are other

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protocols and they're called internet protocol however the patent describes only one internet protocol and that's IP of TCP IP.

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Now my problem is going back to my first question that it actually says it doesn't say internet protocol it says internet program which I just find a little confusing and it seems to

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undermine your position here today.

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I will get you that citation in a moment.

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We're looking for it, Your Honor.

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Let me proceed assuming that I gave you that.

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Giving you the benefit of the clarification, internet protocol is what was intended.

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You seem to emphasize the importance of the fact that in claim one, internet is a small

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Right?

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Well, our position is that the capitalization of Internet Protocol, whether it's Internet Protocol, lowercase i, lowercase p, or Internet Protocol, capital I, capital P, does not matter.

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It's still only one Internet Protocol.

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And if I may, that distinction, or that lack of... But the capitalization doesn't matter, is that what you're saying?

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Correct, Your Honor.

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Your argument is everywhere it's used.

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It means Internet Protocol 4 or whatever.

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IPv4, correct me if I'm wrong.

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Yes.

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That is further explained when we look at the conversion and the sending steps.

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Because our position is that you can't look at Internet Protocol in a vacuum.

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You just can't say, well, what does Internet Protocol mean?

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Well, there's no specific definition, which is correct.

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But when you look at how it's used in the conversion and sending steps, and you look at how the specification uses them, you begin to see that there cannot be multiple protocols, because there is only one.

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Cisco has never pointed to any other protocol in the patent other than the IPFTCPIP.

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When we look at the conversion, that's important, because figure eight,

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which shows what the conversion mechanism is for this patent, shows what are called converters.

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These are the converters that take, let's say, a voice telephone call and convert it into data.

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And there's a variety of converters, I believe that A through F. And those converters link to a variety of networks.

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You have ATM, frame relay, telephone systems, and also internet.

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So we do have multiple networks.

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When you look at the network protocol that is used for the internet network in that conversion diagram, you only see one.

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You see TCPIP.

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You don't see any other networks or you don't see any other protocols.

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You don't see IPv5.

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You don't see any number of the other protocols that could exist.

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You only see one.

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You only see TCPIP.

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Looking at figure two,

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which is the sending step, you see there's three blocks in that figure.

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And those blocks have a telephone server, an internet server, and those are networked using TCPIP.

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And you see those blocks, which are the nodes, those are interconnected using the internet backbone.

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So there's some case law about claim construction that talks about how you should not read a preferred embodiment from the specification into the claims.

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Yes.

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And then there's other cases that talk about how we should use the specification to interpret the claims.

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So can you explain why this is in a situation where you're trying to read a preferred embodiment into the claims?

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I'm glad you asked that.

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Yes.

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In this instance,

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we have claim language that says being internet protocol and is internet protocol.

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I don't think there's any ambiguity there that there's only, that it's referring to a single protocol.

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Now there is the capitalization issue, and I'll get to that in a moment, however, but then you look at the claim, you look at the specification, and the specification describes a single internet protocol, TCPIP.

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So here we have a situation where we have

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a single term internet protocol and we have a single disclosure in the specification which is IP of TCP IP.

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I'm not trying or we are not trying to take a broad term in the claims and say no no no we actually want to limit it to a narrower embodiment in the specification.

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That's exactly what you're trying to do.

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Well there's nothing to narrow because we only have

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one Internet protocol disclosed.

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Now let me give you, I think this is a good point.

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I have a problem with your case, and my problem with your case is this.

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You had an opportunity when you wrote this claim, these claims, and when you wrote this patent to define your key term.

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You didn't.

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Nowhere in your

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written description or anywhere in the patent, is there a simple definition of this key term?

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Why could that possibly be?

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If it was so important to make it clear what internet protocol you were talking about, why wouldn't you have defined it in one sentence?

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Your Honor, when the patent was written,

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And at the time of the invention, which is 1995, the term internet protocol would have been a term that was well known in the art.

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And the reason I say that is because when you look at what is the art in 1995, the key piece of art at that time was the specification that created the internet protocol, which is what we've referenced to as

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RFC 791.

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That's the standard that created IP and IPv4.

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And in fact Cisco's own expert has said that at the time of the invention in 1995, the standard for IP was IPv4.

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And that particular document shows that the term internet protocol, all capitals, the internet protocol capital I, capital P, the internet protocol

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lowercase i, lowercase p, and the elusive internet protocol, capital I, lowercase p, all mean the same thing, which is IPv4.

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And Your Honor... What about the RFC 1190, which expressly states that ST is an internet protocol?

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And that's prior order, right?

[00:10:58] Speaker 01:
Yes, Your Honor.

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It says that.

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I have two responses to that.

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One, ST was never adopted as an official protocol.

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It was always experimental.

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But even if it was an official protocol, even if it became IPv5.

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I think my point is this, is that how do I know that Internet Protocol is referring to the Internet Protocol of TCPIP as opposed to something else when there's other things like ST which are referred to as Internet Protocols?

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If I may, I'd like to answer just real quick your question about the typographical error, the citation, Your Honor.

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is in our reply brief at page 30, where we address the typographical error.

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To your question, the reason we know that there is only one internet protocol in the patent and it doesn't bring in other internet protocols such as, for example, IPv5,

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which is the, I believe, RFC 1190, which your honor is talking about, is that in addition to what I talked about, which is the claim language, the conversion, and the sending step, we also have an additional piece of evidence from the patent, which, and this has been quoted a lot, and I'm sorry if I'm going to reread it again, but it says, the internet network differs from frame relay switching and asynchronous transfer mode by using

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transmission control protocol, internet protocol, comma, which is a set of protocols developed by the Department of Defense to link dissimilar computers across a variety of other networks and protocols.

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That defines in the patent that when internet is used here in the 247, it is using TCPIP.

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And then back to the transmission step.

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Remember I said that the transmission step is sending to the internet.

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which goes back into the conversion step, which the conversion step, if you remember, I pointed out that the converter is sending it to the internet, and that the converter is only using TCPIP.

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So by working backwards, you see that the internet can only be TCPIP, the transmission steps are on the internet, and that the conversion made to the internet is used only

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Before you sit down, I'd like you to tell me what on page 30 you think identifies where the PTO agreed that your use of the word program in the specification was simply a typographical error.

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That's the typographical error.

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It's on our reply brief.

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at 9 and 30 and 31.

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I'm on page 30 and 31.

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So show me where this articulates that the PTO held that your use of the word program was a typographical error and it was meant to be protocol.

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The citation is to APPX 525 at columns at lines 11 through 17.

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You're saying lines 11 through what?

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11 through 17.

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Line 11 says, I'm sorry, Judge, I couldn't hear a few words.

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Pardon me, your last few words were dropped.

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I don't understand how that is relevant to whether or not the PTO made a determination that you're, unless I'm missing something, you just said JA525?

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Am I on the right page?

[00:15:11] Speaker 01:
Yes, Your Honor.

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Your Honor, I'm looking... Yes.

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Why don't you come up on rebuttal and be prepared to address the question.

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May I ask one more question while we still have the gentleman in front of us?

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On page four of your blue brief, do you have your blue brief handy?

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Turn to page four, right in the middle of the page.

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you start the paragraph with the PTAB further erred in finding obviousness because substantial evidence supported the contrary result.

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I don't even understand that point.

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What happens if substantial evidence supports both results?

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Is that possible?

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Yes, Your Honor.

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So that sentence really doesn't help you because it may be true that substantial evidence supports your result, but it may be also true that substantial evidence supports their result.

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How does that undercut our duty to uphold the PTAB if substantial evidence supports them?

[00:16:29] Speaker 01:
Your Honor, substantial evidence supports the PTAB.

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If substantial evidence supports the PTAB, and it also supports your position, so what?

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The fact that it supports your position, I don't think helps you.

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Does it?

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What am I missing?

[00:16:49] Speaker 05:
Your Honor, I think... Why do you make that point as if it's meaningful?

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I think what we meant to say here is that there is a distinction

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in the kinds of issues that were in front of the P-tab.

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There is the factual issues where substantial evidence is standard.

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And so in a situation where, like Your Honor pointed out, where you have substantial evidence that would support both positions, the additional factor which would tip in our favor in such a situation is if one of the legal issues

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came in our favor.

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Well, substantial evidence doesn't support a legal issue.

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A legal issue is a question of law.

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In a situation where, for example, the claim construction, for example, if conversion were construed not to include the encapsulation step, for example.

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Could you have two conversions?

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under that patent, could there be two conversions?

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A conversion from the telephonic protocol to an interim protocol and then to your IP4 protocol for transmission over the internet?

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Is that possible under your patent?

[00:18:20] Speaker 01:
Maybe.

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Maybe.

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Maybe.

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That's an answer.

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Maybe full conversions, multiple conversions would be plausible, but not encapsulation, because that's different.

[00:18:32] Speaker 01:
OK.

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Thank you.

[00:18:35] Speaker 03:
OK.

[00:18:35] Speaker 03:
Here from our closing counsel, Mr. Foster.

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Good morning.

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Thank you, Your Honors, and may it please the court

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With me at council table is my colleague David McCombs.

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We're here on behalf of Cisco.

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There are just a couple points that I'd like to respond to from the patent owner's presentation.

[00:19:06] Speaker 00:
Mr. Villegas indicated that he said there is only one internet protocol, but Judge Stoll, as you were indicating, there is evidence in the record such as at appendix page 1634 and at page 1700.

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both of which refer to the ST protocol as internet protocol version five.

[00:19:27] Speaker 00:
So there is another protocol named capital I, capital P, internet protocol.

[00:19:31] Speaker 05:
Was that true in 1995?

[00:19:35] Speaker 05:
Yes, Judge.

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All of the dates here?

[00:19:38] Speaker 00:
Yes, Judge.

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The reference pages that I just referred to are from RFC 1190, which is the secondary reference used as prior in the ground of rejection.

[00:19:49] Speaker 03:
And what did you call it?

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I thought it was ST2.

[00:19:51] Speaker 00:
Yes, it is ST2.

[00:19:53] Speaker 03:
You said ST5.

[00:19:55] Speaker 00:
Yes.

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Let me clarify.

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It is ST2, which is Internet Protocol Version 5.

[00:20:03] Speaker 03:
Okay.

[00:20:04] Speaker 00:
So it is the second version of ST, but both ST and ST2 were considered Internet Protocol Version 5.

[00:20:14] Speaker 00:
Pat Nohner also argued that there's no disclosure of any

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internet protocols except for IP in their specification but of course the specification has been discussed already this morning refers to TCP IP and TCP or transmission control protocol is another protocol also used on the internet.

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So there's more than one internet protocol even in their specification.

[00:20:39] Speaker 00:
There's TCP which is also an internet protocol.

[00:20:42] Speaker 03:
But isn't it

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well established that the IP part of TCPIP refers to Internet Protocol.

[00:20:52] Speaker 03:
Is there any dispute that the letters IP and TCPIP refers to Internet Protocol?

[00:20:59] Speaker 00:
No, there's not a dispute that you're correct.

[00:21:02] Speaker 00:
The IP in the phrase TCPIP refers to Internet Protocol.

[00:21:07] Speaker 02:
So you agree that that's a typographical error in the patent?

[00:21:10] Speaker 00:
We do not dispute that a person of ordinary skill in the art reading this would understand what had been meant.

[00:21:16] Speaker 00:
I think the issue I would take with the fact that there is this error in the patent is that it seems incongruous to define a term used in the claims to a very specific version of a very specific protocol that was not correctly identified in the specification

[00:21:38] Speaker 00:
when that kind of narrow construction requires unmistakable intent.

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And whether through acting as a lexicographer or through disclaimer, those ways of getting to a very specific interpretation of a claim require that the evidence, the intrinsic evidence, be very clear.

[00:22:00] Speaker 00:
And here it simply isn't.

[00:22:01] Speaker 03:
And the parent application, where I assume the spec was the same, actually claimed TCPIP, didn't it?

[00:22:07] Speaker 00:
That is correct.

[00:22:08] Speaker 00:
There was a parent app.

[00:22:08] Speaker 03:
So they knew how to claim TCPIP, i.e.

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internet protocol from TCPIP, when they wanted to.

[00:22:16] Speaker 03:
They knew how to claim it because they had done so in the parent, hadn't they?

[00:22:19] Speaker 00:
You're correct, yes.

[00:22:24] Speaker 00:
Do you agree, by the way, that program meant protocol?

[00:22:28] Speaker 00:
Yes.

[00:22:29] Speaker 00:
We believe that what was intended there was protocol.

[00:22:34] Speaker 00:
And then Mr. Villegas also

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made the statement here this morning that at the time, as he said in 1995, setting aside the dispute about priority date, he said in 1995 that Internet Protocol was well known in the art to refer specifically and exclusively to version four of Internet Protocol used in conjunction with TCP.

[00:22:59] Speaker 00:
But that's not what they argued below to the board.

[00:23:02] Speaker 00:
If we look at appendix page 236,

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On page 236, they wrote, quote, at the time of the invention of the 247 patent, there is no generally accepted definition, i.e.

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ordinary and customary meaning of internet protocol.

[00:23:23] Speaker 00:
So, end quote.

[00:23:25] Speaker 00:
I'm a little bit confused there as to what... I take it you agree with that proposition.

[00:23:30] Speaker 00:
We would agree that lower case internet protocol is a generic term and does not have

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a specific generally accepted definition at the time.

[00:23:38] Speaker 05:
How about if it was capitalized, i?

[00:23:42] Speaker 00:
If only the i was small p. If it is capital i and small p, I think there's some ambiguity there and an unclarity because internet protocol as an accepted defined internet standard both the i and the p would be capitalized.

[00:23:57] Speaker 05:
How often in the patent did that small i internet protocol appeal?

[00:24:06] Speaker 00:
I do not recall whether small i internet... I do recall.

[00:24:11] Speaker 05:
This is the only place you'll find it.

[00:24:15] Speaker 05:
What does that tell us?

[00:24:20] Speaker 00:
Judge, you're saying in the claim is the only place that the i is ever located?

[00:24:23] Speaker 05:
Or anywhere in the patent as near as I could find.

[00:24:26] Speaker 05:
It's the only place with a small i internet protocol.

[00:24:30] Speaker 05:
Does that tell us anything?

[00:24:32] Speaker 00:
To me, it tells us that the intrinsic record alone is insufficient to figure out what the meaning of the claim was.

[00:24:39] Speaker 00:
And so the board was correct to then start looking at extrinsic sources and to see how the terms, either capitalized or not capitalized, were used differently in the heart.

[00:24:48] Speaker 05:
So it could very well have been a typographical error.

[00:24:53] Speaker 05:
The capitalization?

[00:24:54] Speaker 05:
Yes, of internet at that point.

[00:24:57] Speaker 05:
It's the only place where they seem to have made that little eye.

[00:25:01] Speaker 03:
Well, there has to have been a typographical error, right?

[00:25:04] Speaker 03:
Because nobody calls internet protocol, i.e.

[00:25:07] Speaker 03:
the one, capital I, lower P. There has to have been a typographical error one way or the other, correct?

[00:25:16] Speaker 00:
I'm not sure whether there was a typographical error with respect to the capitalization of the word internet there in column seven or not.

[00:25:25] Speaker 03:
I don't understand.

[00:25:28] Speaker 03:
capital I lowercase P to be the IP protocol of TCPIP, correct?

[00:25:33] Speaker 00:
That is what the board found.

[00:25:35] Speaker 03:
And you support that position?

[00:25:37] Speaker 00:
We support that position.

[00:25:38] Speaker 03:
TCPIP, both the I and the P are capitalized, correct?

[00:25:41] Speaker 00:
Ordinarily, yes.

[00:25:42] Speaker 03:
In a proper name, I assume you capitalize both the first letter of your first name and the first letter of your last name, do you not?

[00:25:50] Speaker 00:
You are correct, yes.

[00:25:50] Speaker 03:
So there has to at least have been, under the very construction you seek,

[00:25:55] Speaker 03:
a typo here, because to my knowledge, I've never seen a document or support for the notion that capital I, lowercase p, is the internet protocol well known to be under the plain meaning anywhere.

[00:26:08] Speaker 03:
Is that right?

[00:26:09] Speaker 00:
When both are capitalized, there is no dispute that that refers to IPv4.

[00:26:13] Speaker 03:
Right, but when one is and one is not, I see no evidence in this record that supports that everyone would understand one being capitalized and one not being capitalized is nonetheless referring to the proper name

[00:26:25] Speaker 03:
of the TCPIP protocol.

[00:26:28] Speaker 02:
What about the fact that the specification itself says capital I, internet, and then program, which everybody understands to be protocol, is not capitalized?

[00:26:38] Speaker 00:
The P is not capitalized.

[00:26:40] Speaker 00:
The D is not capitalized.

[00:26:41] Speaker 00:
Although the I is.

[00:26:42] Speaker 00:
That is correct.

[00:26:43] Speaker 00:
The specification refers to transmission control protocol, internet protocol.

[00:26:47] Speaker 00:
And in that phrase, only the word internet is capitalized.

[00:26:50] Speaker 00:
And the rest of those words are lowercase.

[00:26:53] Speaker 03:
It seems that it's sort of beyond dispute, but that this is a sloppily drafted patent.

[00:27:01] Speaker 03:
Because whichever position I adopt requires me to be willing to accept errors in the patent and correct them.

[00:27:10] Speaker 03:
So when you have a scenario like that, who ought to be faulted for it?

[00:27:15] Speaker 00:
Well, I believe that there is case law to suggest that the errors go to the drafter.

[00:27:22] Speaker 03:
Because they're the ones with the opportunity to make it clear.

[00:27:25] Speaker 00:
Yes, you're correct.

[00:27:27] Speaker 05:
And so the Latin phrase for that in a contract law isn't there?

[00:27:31] Speaker 00:
There is.

[00:27:32] Speaker 00:
If my Latin were fresher, I might have it at the tip of my tongue.

[00:27:35] Speaker 02:
What if the claimants say the internet protocol?

[00:27:38] Speaker 02:
Would you have a different position?

[00:27:41] Speaker 00:
If the word the were there, we might have a different position.

[00:27:44] Speaker 00:
I don't know, because it's not there.

[00:27:47] Speaker 00:
That's not an issue that was considered below.

[00:27:50] Speaker 00:
You know, there was never a suggestion, well, the word V should be read into the claim text or something like that.

[00:27:56] Speaker 00:
That was never an argument raised.

[00:27:59] Speaker 00:
Regarding claim construction, I would point out, even if patent owner were to prevail on the claim construction issue and you agreed that this claim should refer to Interop Protocol Version 4, as they argue, there's still good evidence in the record

[00:28:20] Speaker 00:
that the prior disclosed techniques for sending telephone transmissions using internet protocol and even patent owner's own expert did some development work in testing with that and at the time he declared those tests successful in communicating a telephone conversation I believe it was between Stockholm and London using the capital I internet.

[00:28:42] Speaker 05:
So your position really is that all the fussing about the

[00:28:46] Speaker 05:
The capitalization is irrelevant because you will win either way we look at it.

[00:28:52] Speaker 00:
Yes, that is correct.

[00:28:55] Speaker 00:
For the court to do anything other than affirm, I believe the patent owner would have to prevail both on the claim construction issue and then under the substantial evidence test to find that there was insufficient evidence of the use of Internet Protocol Version 4.

[00:29:14] Speaker 00:
in the prior art, despite the fact that there's clearly evidence that I'm happy to discuss further showing the use of Internet Protocol Version 4 to transmit telephone conversations.

[00:29:26] Speaker 03:
Well, I think we have that in your brief.

[00:29:28] Speaker 03:
Is there anything else that you feel like you need to cover?

[00:29:30] Speaker 00:
I have no further topics.

[00:29:32] Speaker 03:
Thank you, Mr. Foster.

[00:29:33] Speaker 03:
Thank you.

[00:29:35] Speaker 03:
Let me restore two minutes of rebuttal time.

[00:29:40] Speaker 03:
Given his concession, you don't need to worry about

[00:29:44] Speaker 03:
what, at least, unless Judge Stoll, like, you know.

[00:29:48] Speaker 01:
Yeah, the correct citation was an APPX 13, Your Honor.

[00:29:51] Speaker 01:
Apologies for the confusion.

[00:29:53] Speaker 01:
A few things.

[00:29:56] Speaker 04:
Do you agree that either way, you lose?

[00:30:00] Speaker 01:
No, Your Honor.

[00:30:03] Speaker 01:
No, what my friend from Cisco.

[00:30:05] Speaker 05:
I thought you might make it easy for us.

[00:30:07] Speaker 01:
What my friend from Cisco did not say is that,

[00:30:13] Speaker 01:
there has to be a construction of the term conversion, because without a construction of the term conversion, the parties are talking across each other.

[00:30:23] Speaker 01:
As Your Honor pointed out, they say that conversion is a conversion from voice to ST2 and then an encapsulation into IP4.

[00:30:37] Speaker 01:
We see that conversion

[00:30:38] Speaker 01:
is not that.

[00:30:39] Speaker 03:
I have no idea what you're talking about.

[00:30:41] Speaker 03:
Did I miss something in your brief where you appealed a construction of the word conversion?

[00:30:47] Speaker 01:
No, Your Honor, but the understanding of whether or not that term is present in the claims for purposes of invalidating the patent

[00:30:59] Speaker 01:
You have to understand, well, what does that term mean?

[00:31:01] Speaker 01:
Because what we see here is- That sounds like claim construction.

[00:31:05] Speaker 03:
Figuring out what a word in a claim means sounds like claim construction, but you didn't appeal claim construction.

[00:31:09] Speaker 01:
Well, we didn't appeal.

[00:31:12] Speaker 01:
Neither party brought up the issue of conversion, Your Honor.

[00:31:15] Speaker 01:
You're correct.

[00:31:16] Speaker 01:
However- So we can do whatever we want with it.

[00:31:19] Speaker 01:
Yes, you can.

[00:31:21] Speaker 01:
But that doesn't change the fact that we have our position, which says that conversion

[00:31:30] Speaker 01:
is not conversion plus encapsulation.

[00:31:36] Speaker 01:
That is not conversion.

[00:31:39] Speaker 01:
They say it is.

[00:31:40] Speaker 01:
And so the fundamental question is, well, what is conversion?

[00:31:44] Speaker 01:
Now, whether or not that was briefed in terms of, is that a claim construction issue or not, doesn't really answer the question.

[00:31:51] Speaker 01:
Because at some point, this court will have to understand, well, what does conversion necessarily mean?

[00:31:57] Speaker 01:
because otherwise the parties are talking across each other, and there's no way to determine whether or not that particular claim element is disclosed in the ST-ST2 combination.

[00:32:06] Speaker 01:
That was the RFC 1190 and the Weinstein.

[00:32:10] Speaker 01:
A little bit of backstory, I think, would help an understanding.

[00:32:14] Speaker 03:
Well, we are beyond our time, so I don't think we have time for backstory, but if you have a final concluding thought, we're happy to hear it.

[00:32:21] Speaker 01:
Your Honor, no, but to the conversion, even if it was not briefed as a

[00:32:27] Speaker 01:
claim construction issue, it is still something that needs to be understood to properly understand the case.

[00:32:35] Speaker 03:
I thank both parties for their argument.

[00:32:36] Speaker 01:
This case is taken under submission.