[00:00:00] Speaker 04:
versus the International Trade Commission 16-2563

[00:00:48] Speaker 04:
Mr. Quinn, how are you?

[00:00:52] Speaker 04:
I'm going to need some help here, how you've divided up your time, okay, just to make sure I get everybody in the right order.

[00:00:58] Speaker 04:
So, Mr. Quinn, you have 15 minutes.

[00:01:02] Speaker 04:
You're saving three for rebuttal.

[00:01:05] Speaker 04:
Is that correct or not?

[00:01:08] Speaker 02:
I'm Mr. Powers and I'm saving six.

[00:01:11] Speaker 04:
Okay, Mr. Powers.

[00:01:13] Speaker 04:
And you reserve six.

[00:01:15] Speaker 04:
Mr. Quinn, you reserve three.

[00:01:17] Speaker 01:
That's correct.

[00:01:19] Speaker 01:
Okay.

[00:01:19] Speaker 04:
All right.

[00:01:22] Speaker 04:
Ms.

[00:01:22] Speaker 04:
Fishrow, you have 15 minutes.

[00:01:27] Speaker 04:
Okay.

[00:01:27] Speaker 04:
So let's start with Mr. Powers.

[00:01:32] Speaker 02:
Thank you, Your Honor.

[00:01:33] Speaker 02:
May it please the Court.

[00:01:35] Speaker 02:
I'd like to begin, if I may, with the claim construction issue on the 537.

[00:01:38] Speaker 02:
The claim construction issue presented is whether the claim language that was added at the end of the very lengthy prosecution

[00:01:47] Speaker 02:
successfully in order to avoid prior art requires both the storage in the central database of configuration data, which the commission found, and also the commands that produced that data, which the commission did not find.

[00:02:04] Speaker 02:
And I would like to initially dispel two false premises, if I may.

[00:02:11] Speaker 02:
One argument that Cisco makes extensively in its briefing is that the issue below was either or.

[00:02:18] Speaker 02:
that Arista presented this question as the claim requires either configuration data or commands, but not both.

[00:02:27] Speaker 02:
That's false.

[00:02:28] Speaker 02:
We specifically said that the claims elsewhere require the storage of configuration data.

[00:02:34] Speaker 02:
So there's no dispute that configuration data is required to be stored in that central database.

[00:02:39] Speaker 02:
The question is whether the language that we're pointing to here on appeal also requires the storage of the commands.

[00:02:47] Speaker 02:
That is the issue.

[00:02:49] Speaker 02:
And so the commission, I think, inappropriately followed the framing that Cisco had adopted and said, well, look at all the evidence and the specification that requires storage of the data.

[00:03:01] Speaker 02:
That's what we're going to find is required to be stored.

[00:03:03] Speaker 02:
That is not the dispute.

[00:03:04] Speaker 02:
Arista does not dispute that the claims require storage of configuration data.

[00:03:09] Speaker 02:
That's required by other claim language, explicitly.

[00:03:13] Speaker 02:
What the issue here is whether the commands also must be stored.

[00:03:17] Speaker 02:
There are three sources of support for that position.

[00:03:20] Speaker 02:
First is the claim language.

[00:03:21] Speaker 02:
Cisco argues that we're relying on highly technical rules of grammar, but they don't dispute that the correct reading of the claims using appropriate rules of grammar supports our position.

[00:03:36] Speaker 02:
They're wrong, though, in arguing that we're relying exclusively on... But what's the rule of grammar?

[00:03:41] Speaker 04:
The proximity of the... Exactly.

[00:03:44] Speaker 02:
Exactly.

[00:03:46] Speaker 02:
Strunk and White would say that if you wanted to read it as Cisco does, you would put in two different commas so that the modifier then is not modifying the intermediate clause, but the prior clause.

[00:03:58] Speaker 02:
And they pooh-pooh the argument as if we shouldn't be relying on the rules of grammar.

[00:04:05] Speaker 02:
But they don't dispute that the applicable rules of grammar provide that our reading of the claim is appropriate.

[00:04:11] Speaker 02:
But we're not relying, as Cisco implies, simply

[00:04:16] Speaker 02:
the correct reading of the rules of the claims, the specification and the file history also specifically support the position.

[00:04:24] Speaker 02:
Cisco's brief aggressively takes the position that the specification nowhere supports the idea that the commands are stored in the central database.

[00:04:35] Speaker 02:
And they argue that the two places in the specification that we point to are merely discussing the prior art.

[00:04:42] Speaker 02:
Not true.

[00:04:44] Speaker 02:
in the 537 patent itself at column two, lines 51 to 53, that is explicitly talking about the invention, and explicitly says, quote, the SysDB receives configuration commands from various iOS subsystems, close quote.

[00:04:58] Speaker 02:
So Cisco's argument then devolves to, well, it doesn't say that that database stores the commands, it merely says it receives the commands, to which they have no response, though,

[00:05:11] Speaker 02:
to the argument that that's exactly what a database does is store.

[00:05:15] Speaker 02:
And there's no other purpose for it to be sent to that database other than for storage.

[00:05:18] Speaker 02:
That's what databases do.

[00:05:21] Speaker 02:
And so Cisco's argument is then, I think, devolves down to something which is essentially nitpicking words, but not nitpicking the technology.

[00:05:31] Speaker 02:
The technology is that database receives those commands and that's what databases do is store those commands.

[00:05:38] Speaker 02:
But not just 537 at column two.

[00:05:40] Speaker 02:
The 752 pattern, which was incorporated by reference specifically for the functioning of the database, says at column three, line 36 to 38, the invention, again, not the prior art, receives configuration commands from a user of the router.

[00:05:55] Speaker 02:
The invention then communicates the configuration command to the centralized database system.

[00:06:00] Speaker 02:
Close quote.

[00:06:01] Speaker 02:
Unambiguously, again, that that database receives those commands, two places in the specification that are highly relevant,

[00:06:08] Speaker 02:
And no suggestion from Cisco that the database which stores things doesn't store them.

[00:06:14] Speaker 02:
And so the specification is, I think, quite clear.

[00:06:17] Speaker 02:
The prosecution history is, if anything, more clear.

[00:06:21] Speaker 02:
So the prosecution history, I'd like to walk through, if I may, in a little more detail than normal, because it's illustrative, and I think Cisco's description of it is misleading.

[00:06:31] Speaker 02:
The prosecution history is extensive, year after year.

[00:06:35] Speaker 02:
Cisco tried to make, right, to get these claims allowed without adding the limitation that is now at issue.

[00:06:42] Speaker 02:
They then made that amendment, and they did so starting at Appendix 1519.

[00:06:49] Speaker 02:
And they argued in that amendment that the key priority reference called CISCON does not teach router configuration data as stored in the database.

[00:07:01] Speaker 02:
So that's the argument that is part of this language that was added.

[00:07:06] Speaker 02:
And that was, and that argument was made by Cisco when this claim language was added.

[00:07:11] Speaker 02:
The Patent Office then did not accept that argument.

[00:07:14] Speaker 02:
They still maintain the rejection.

[00:07:16] Speaker 02:
That is at Appendix 1537.

[00:07:17] Speaker 02:
And specifically, the Patent Office said at 1539, quote, it is noted that applicant has made no attempt to show why each and every amendment made to the claims have any sort of patentable novelty or advantage.

[00:07:31] Speaker 02:
key because that's the Patent Office saying to Cisco, you've added a lot of words, tell us why this makes a difference.

[00:07:38] Speaker 04:
Go back to why SISCON makes a difference here.

[00:07:41] Speaker 04:
Does SISCON teach the commands at all?

[00:07:44] Speaker 02:
SISCON, the argument was made that there was both a debate about whether it taught the commands and a debate about whether it taught configuration data and a debate about whether what was either or not equivalent to a command was stored in the database.

[00:07:56] Speaker 02:
Those are all three arguments that were made.

[00:07:59] Speaker 02:
The argument about the configuration data was not successful.

[00:08:02] Speaker 02:
They made it, and the examiner at 1541 said, acknowledged, that CISCON does not expressly disclose externally managing storing router data.

[00:08:12] Speaker 02:
But went on to say, it discloses that databases for storing data are well known, therefore I think it's obvious that conclusions at 1542.

[00:08:18] Speaker 04:
But did the ITC find that CISCON does not teach commands at all, whether they're stored or not?

[00:08:27] Speaker 02:
There was a debate about that question, and the Commission, I don't think, went that far on that question.

[00:08:35] Speaker 04:
What the debate was in the file history, because we're not talking about... But if we find that that is the case, and that undermines your argument that you're making... No, because they made both arguments.

[00:08:46] Speaker 02:
They made both arguments, because the debate in the... We're talking about the file history now.

[00:08:50] Speaker 02:
The debate in the file history was, we don't think CISCON teaches commands or discloses commands.

[00:08:55] Speaker 02:
But they do have things called properties which were being argued to be commands.

[00:09:00] Speaker 02:
And they said, that's not stored in the database.

[00:09:04] Speaker 02:
And what's important here is what happens then is the Cisco's next response.

[00:09:11] Speaker 02:
And this is at 1564.

[00:09:12] Speaker 02:
At 1564, after unsuccessfully making the argument about configuration data, which is the argument they now have claimed won the day, they said, well, the examiner partially addressed our amendment.

[00:09:25] Speaker 02:
by responding to the configuration data, but not the whole thing.

[00:09:29] Speaker 02:
And then says, CISCON fails to disclose, teach, or otherwise suggest executing configuration commands before storing them in a database, close quote, them.

[00:09:40] Speaker 04:
So whatever system... If it doesn't teach commands, then it doesn't matter whether they're stored or not.

[00:09:45] Speaker 02:
True, but they had both arguments.

[00:09:46] Speaker 02:
They were making both arguments as well.

[00:09:48] Speaker 02:
But the argument that we're talking about is not whether CISCON really did or did not anticipate.

[00:09:54] Speaker 02:
or make render obvious.

[00:09:56] Speaker 02:
What we're talking about is the understanding of the examiner and the applicant at the time about what the meaning of the limitation that was added meant.

[00:10:04] Speaker 02:
And Cisco is arguing that nobody would say that this language means you have to store commands.

[00:10:10] Speaker 02:
So whether Siscon had commands or not, you cannot read this language from Cisco's patent attorney any way other than an admission that storing commands is required by the claims, because he said,

[00:10:23] Speaker 02:
CISCON fails to disclose, teach, or otherwise suggest executing configuration commands before storing them in a database.

[00:10:30] Speaker 02:
That is fatal to Cisco's current argument, which says the claim should not be construed to require storing commands in a database.

[00:10:38] Speaker 02:
Their patent attorney explicitly argued to the contrary in the patent office.

[00:10:43] Speaker 02:
And after that argument was made, the claims were allowed.

[00:10:48] Speaker 02:
After that argument, the claims were allowed.

[00:10:50] Speaker 02:
And I think that that

[00:10:51] Speaker 02:
But for purposes of interpreting the claims, and there's obviously two roles that prosecution history plays and play construction, one is interpreting the claims when there's a claim to ambiguity.

[00:11:01] Speaker 02:
And here I think there is no room for ambiguity left in light of that statement by the examiner, whatever CISCON disclosed, because it was explicitly making the arguments that the commands needed to be stored.

[00:11:14] Speaker 02:
And the second role that prosecution history can play, which you don't need to reach here but is applicable here, is disclaimer.

[00:11:21] Speaker 02:
even if it didn't require it, when you explicitly get around prior art successfully, you are not allowed then to say that that limitation doesn't apply.

[00:11:30] Speaker 03:
I don't want to let you go without asking a question off of what you're talking about, but I do want an answer.

[00:11:38] Speaker 03:
Cisco alleges that after filed the complaint, you made certain business decisions, quote, to avoid the ITC's jurisdiction by

[00:11:48] Speaker 03:
allegedly no longer importing products that directly infringe.

[00:11:53] Speaker 03:
Does the record contain any evidence that showed you changed your business practice for some other reason?

[00:12:01] Speaker 02:
I don't believe the issue is relevant, but I'll obviously answer the question.

[00:12:04] Speaker 02:
It's not relevant to claim construction or any other questions.

[00:12:07] Speaker 02:
There was a debate about whether the importation of blank switches without the software was done for this purpose.

[00:12:14] Speaker 02:
There was evidence on that from both sides.

[00:12:17] Speaker 02:
Because that issue wasn't relevant to here, I don't have a record site for you.

[00:12:21] Speaker 02:
And that may not even be in your record, because it's not an issue that's joined.

[00:12:25] Speaker 02:
That's just spice or poison that Cisco's trying to put in that is not relevant to any of the issues on appeal.

[00:12:32] Speaker 02:
So I know, and I didn't do the ITC case below, I know that was a disputed question.

[00:12:38] Speaker 02:
I cannot point you to the evidence on the other side.

[00:12:41] Speaker 04:
Let's move on to some of the other issues.

[00:12:44] Speaker 04:
What about the scope of the limited exclusion or the inclusion of components?

[00:12:49] Speaker 02:
Thank you.

[00:12:50] Speaker 02:
I'd very much like to turn to that.

[00:12:51] Speaker 02:
I think there's two questions that are very important for the Court to address on that question.

[00:12:56] Speaker 02:
The first is a jurisdictional question, and the second issue is a question of the proper role, scope, and requirements for both contributory and inducement infringement allegations in the ITC.

[00:13:08] Speaker 02:
And both of those, I think, require a decision by the court.

[00:13:12] Speaker 02:
With regard to the jurisdiction question, I really think there's only two issues here.

[00:13:17] Speaker 02:
I don't think there's a meaningful debate that an act of infringement is required to invoke the exclusionary power of the ITC.

[00:13:25] Speaker 02:
That is clear from the statute and not, I think, seriously disputed.

[00:13:29] Speaker 02:
What is disputed, I think, here are two things.

[00:13:32] Speaker 02:
First, whether the commission actually did make findings with regard to infringement

[00:13:38] Speaker 02:
the contributory inducement infringement from the components with a capital C. And our view, of course, is that the reason that the Commission made reversible error, legal error, was it had an exclusion order as to components which had not been found to infringe.

[00:13:56] Speaker 02:
It specifically did not make a finding of infringement that importation of those components constituted contributory or inducement infringement.

[00:14:04] Speaker 04:
Why don't you challenge this issue in the other cases that

[00:14:08] Speaker 04:
in the other patents that haven't been raised on appeal?

[00:14:12] Speaker 02:
There was explicit findings as to those and not as to here.

[00:14:16] Speaker 02:
So our point is those are two patents that are no longer relevant and not part of this appeal, but there were findings there.

[00:14:23] Speaker 02:
That's the whole point.

[00:14:24] Speaker 02:
As to the two PV land patents, the commission made explicit findings with regard to the components.

[00:14:30] Speaker 02:
As to the components on this patent, 537, the commission explicitly said it did not reach that question.

[00:14:36] Speaker 02:
CISCA tries to make

[00:14:38] Speaker 02:
a bootstrap argument that it sort of made a finding by saying it could reach the components based on the finding of infringement of the whole switch and the blank switch.

[00:14:47] Speaker 02:
That is not what it did.

[00:14:48] Speaker 02:
There is no way to reconcile the contrast between how the commission approached the PV land patents and the blank switches, as to which it made explicit findings of contributory... So these components are still excluded, right, under the other cases?

[00:15:04] Speaker 02:
No, because on the exclusion order, we've had proceedings in the customs office and everything else.

[00:15:11] Speaker 02:
We have a customs letter saying we can go ahead and import.

[00:15:13] Speaker 02:
There's no restriction at all.

[00:15:15] Speaker 02:
But the principle is important.

[00:15:17] Speaker 04:
So there's no restriction of the importation of the components under the other patents?

[00:15:22] Speaker 02:
With regard to the prior ruling, no, because the functionality in the two other patents has been removed.

[00:15:30] Speaker 02:
And the Customs and Border Patrol

[00:15:32] Speaker 02:
decision was the removal of that makes it a non-infringing good.

[00:15:36] Speaker 02:
Isn't that the result of a customs ruling?

[00:15:38] Speaker 02:
Exactly.

[00:15:39] Speaker 02:
Exactly.

[00:15:40] Speaker 02:
And that, I think, is not an issue here either.

[00:15:43] Speaker 02:
So those can be imported for those purposes.

[00:15:47] Speaker 02:
So the first issue that Cisco raises, that there really was this sort of subsilencio finding, that doesn't stand.

[00:15:54] Speaker 02:
The second argument relies on ViscoFan primarily and says that the ITC has wide flexibility in fashioning

[00:16:01] Speaker 02:
its remedial orders.

[00:16:03] Speaker 02:
That, as a general statement, is true.

[00:16:06] Speaker 02:
But it does not have authority to exceed its jurisdiction.

[00:16:09] Speaker 02:
And VSCOFAN does not stand in the way of that.

[00:16:11] Speaker 02:
VSCOFAN is importantly distinguishable and materially distinguishable because the remedy that was at issue there was not the remedy for a patent infringement claim, although there was a patent infringement claim there, too.

[00:16:23] Speaker 02:
The remedy we're talking about from VSCOFAN was for a trade secret violation.

[00:16:27] Speaker 02:
And what VSCOFAN did was to say,

[00:16:30] Speaker 02:
There's a factory over in Spain, and they use the trade secrets.

[00:16:36] Speaker 02:
We can't tell here whether the trade secrets are being used or not.

[00:16:39] Speaker 02:
So it's not like a patent claim where you can assess it at the border and decide that it's an infringer or not.

[00:16:44] Speaker 02:
And they looked and there's extensive debate, and the issue was expressly joined in VSCOFAN that said the remedy for a trade secret violation is different from a remedy for a patent violation.

[00:16:55] Speaker 02:
The remedy for a trade secret violation is typically

[00:16:59] Speaker 02:
a complete ban on sale, or in this case, importation, for a period that we decide would have been long enough that it would have taken you to develop that technology without using the trade secrets.

[00:17:09] Speaker 04:
Okay.

[00:17:10] Speaker 04:
Let's move on to the next argument.

[00:17:13] Speaker 04:
Unless you want to keep going.

[00:17:17] Speaker 04:
I'm giving all the parties extra time on the argument here, so I'll hold you to your time, okay?

[00:17:22] Speaker 04:
Thank you, Your Honor.

[00:17:23] Speaker 04:
All right.

[00:17:24] Speaker 04:
Thank you, Mr. Powers.

[00:17:25] Speaker 04:
Mr. Quinn?

[00:17:28] Speaker 04:
I don't know how to confuse you with Mr. Powers.

[00:17:32] Speaker 01:
That's quite all right, Judge Raina.

[00:17:34] Speaker 01:
Thank you, Judge Raina.

[00:17:35] Speaker 01:
May I please the court?

[00:17:36] Speaker 01:
John O'Quinn on behalf of Cisco.

[00:17:39] Speaker 01:
Judge Wallach, I want to come back to the question that you asked a moment ago about did they have any business reasoning for changing their importation practices.

[00:17:48] Speaker 01:
The commission at appendix 518 found that they did not following the ALJ at appendix

[00:17:53] Speaker 01:
676.

[00:17:54] Speaker 01:
And that issue is directly relevant because it ultimately goes to the issue of remedy.

[00:17:59] Speaker 01:
In particular, it's relevant to the issue of remedy because it's relevant to whether or not there's a circumvention of the ITC's authority, both in terms of when the case was being tried and potentially a circumvention of the ITC's order here.

[00:18:16] Speaker 01:
And I think there are really two issues that are presented with respect to remedy.

[00:18:20] Speaker 01:
First is the question of

[00:18:21] Speaker 01:
Did the commission actually find that importing components as opposed to the entire assembled switch induce infringement?

[00:18:30] Speaker 01:
And I think when you look at the commission's opinion as a whole, you look at its adoption at appendix 507 of the ALJ's findings, you look at the fact that it found that the exact same components induced infringement of the two VLAN patents incorporating the exact same reasoning by reference in terms of state of mind and inducement.

[00:18:50] Speaker 04:
both with respect to the change in importation practices and with respect to the... So your opponent says there was no finding that the components infringed in this particular patent.

[00:19:01] Speaker 01:
Right.

[00:19:01] Speaker 04:
And what... Were they silent about that or did the ITC actually make a decision and say they don't infringe in this case?

[00:19:07] Speaker 01:
The ITC did not make a finding to the contrary.

[00:19:10] Speaker 01:
The ITC did not disagree with the ALJ.

[00:19:13] Speaker 01:
The ITC, in fact, found that there was a corporate culture of copying

[00:19:19] Speaker 01:
that there was induced infringement that was evidenced by the change in importation practices.

[00:19:25] Speaker 01:
And the commission adopted that with respect to the patent that we're talking about, the 537 patent.

[00:19:30] Speaker 01:
And it incorporated by reference that very same reasoning with respect to the two VLAN patents for which they have not appealed.

[00:19:38] Speaker 01:
And I'll also note that the commission, in its opinion, specifically distinguishes between capital B blank capital S switches and the switch hardware.

[00:19:49] Speaker 01:
Switch hardware being a term that was used by the ALJ as referring to the individual components.

[00:19:54] Speaker 01:
And you can see that in Appendix 682.

[00:19:56] Speaker 01:
So I don't think you can fairly read the commission's opinion as not finding inducement with the components.

[00:20:02] Speaker 01:
But even if you did, then you would have before the court the question of the scope of the ITC's remedial authority.

[00:20:09] Speaker 01:
And the position that's being advocated by Arista raises, frankly, some of the very same concerns that you identified in your dissent in the original panel decision in Suprema.

[00:20:18] Speaker 01:
And I think that the en banc Suprema decision ultimately addresses, which is that you would turn the commission into a paper tiger if somebody can simply walk up to the border with a device, break it into two parts, take a step across, and then reassemble it.

[00:20:32] Speaker 04:
And that's exactly- Has custom's issued an official ruling that's excluded the component from the exclusion order?

[00:20:41] Speaker 01:
So Judge Raina, what Mr. Powers is referring to is that after the entry of the exclusion order,

[00:20:47] Speaker 01:
RISTA has engaged in various purported design arounds with respect to both the VLAN patents and with respect to the 537 patent.

[00:20:58] Speaker 01:
There's currently an ongoing enforcement proceeding in front of the Commission with respect to the 537, whether or not this is a successful design around with respect to the 537 patent.

[00:21:08] Speaker 01:
That issue is being litigated before the Commission, but for the moment, Customs and Border Patrol have issued an order that is allowing them to import

[00:21:17] Speaker 01:
not just components, but assembled switches, and that issue with respect to the 537, it's not being contested on the VLAN patents, is currently before the ALJ in an enforcement proceeding.

[00:21:29] Speaker 01:
Now, I'd like to turn back to the issue of the interpretation of the 537, and Judge Raina, I think you asked the key question here, because the issue is whether or not SISCON taught commands at all, and that is exactly what the entire back and forth

[00:21:46] Speaker 01:
with the examiner was all about.

[00:21:49] Speaker 01:
And there's really a trilogy here in the prosecution history.

[00:21:52] Speaker 01:
It's all in volume three.

[00:21:54] Speaker 01:
It's at pages appendix 1521, 1539, and 1564 to 65.

[00:22:00] Speaker 01:
And when you walk through the back and forth between Cisco and the examiner, you see that the entire issue is whether or not the data that Cisco was claiming, data derived from

[00:22:15] Speaker 01:
executed user-supplied commands was the same as the data that was derived from the structures at SISCON.

[00:22:23] Speaker 01:
And so if you look, for example, at 15.21, the argument that was made is that SISCON does not teach router configuration data, again, router configuration data as stored in a database.

[00:22:36] Speaker 01:
And further on 15.21, the argument was that the router configuration data is data that results from a router configuration module

[00:22:45] Speaker 01:
executing configuration commands issued by a user.

[00:22:49] Speaker 01:
That's 1521 of volume three.

[00:22:51] Speaker 01:
This is the same time in which the claim language that we're talking about is introduced, and that claim language never changes.

[00:23:00] Speaker 01:
There's no subsequent amendment to the claim language.

[00:23:03] Speaker 01:
Now, the examiner does not appreciate Cisco's argument and doesn't understand the distinction that's being drawn between data derived from user commands and data from the structures

[00:23:15] Speaker 01:
that were at issue at SISCON, and that's the rejection that you see at 1539, where he says that the applicant argues SISCON doesn't teach wherein the router config... that we argued that SISCON doesn't teach wherein the router configuration data is derived from configuration commands provided by the user, and he says SISCON does disclose this limitation.

[00:23:37] Speaker 01:
So that brings us to 1564-65 and the things that Arista relies so heavily on.

[00:23:43] Speaker 01:
And you have this prefatory paragraph on 1564.

[00:23:47] Speaker 01:
And yes, it does have the language that Arista quotes over and over that says, CISCON fails to disclose, teach, or otherwise suggest executing configuration commands before storing them in a database.

[00:23:59] Speaker 01:
What is being said here is it's before storing the executed configuration commands.

[00:24:06] Speaker 01:
And I realize it's not very artfully written.

[00:24:08] Speaker 01:
But when you read the very next paragraph, it then begins.

[00:24:12] Speaker 01:
specifically.

[00:24:14] Speaker 01:
The prosecuting attorney then explains in the next three paragraphs what exactly was meant by this statement.

[00:24:22] Speaker 01:
And it's not at all about storing configuration commands.

[00:24:26] Speaker 01:
He says specifically, and then you look at 1565, he makes the point that the structures here, referring to CISCON, are not commands, i.e.

[00:24:35] Speaker 01:
user-supplied commands.

[00:24:37] Speaker 01:
makes the point that this is not, and this is still on 1565, this is not equivalent to executing a command that configures a router.

[00:24:45] Speaker 01:
And then the bottom paragraph at 1565, finally there's no disclosure, teaching, or suggestion in SysCon that execution of user-supplied configuration commands results in configuration data that is stored in a database.

[00:25:01] Speaker 01:
So it was always about whether or not the data

[00:25:05] Speaker 01:
derived from configuration commands was the same thing that the data was at issue at CISCON.

[00:25:12] Speaker 01:
And you don't have to take my word for it.

[00:25:13] Speaker 04:
Well, the language is the same.

[00:25:16] Speaker 04:
It just seems to me that it's pretty clear on 1564 that CISCON fails to disclose or teach.

[00:25:22] Speaker 04:
It goes on executing configuration commands before storing them in a database.

[00:25:27] Speaker 01:
Sure.

[00:25:28] Speaker 04:
It's clear.

[00:25:29] Speaker 04:
I mean, the issue is there is

[00:25:31] Speaker 04:
When are they stored?

[00:25:32] Speaker 04:
Before they're used or after they're used?

[00:25:34] Speaker 04:
But there's no doubt that they're stored.

[00:25:36] Speaker 01:
Well, it is, you know, this sort of gets a little bit to the ALJ's alternative finding, which the commission didn't reach.

[00:25:42] Speaker 01:
And that is whether or not even under Arista's construction, there would still be infringement.

[00:25:47] Speaker 01:
Because the data is the executed configuration commands.

[00:25:52] Speaker 01:
So the configuration commands are executed.

[00:25:55] Speaker 01:
That results in data.

[00:25:57] Speaker 01:
The data is the executed configuration commands.

[00:26:00] Speaker 01:
And that is what is, in fact, stored.

[00:26:03] Speaker 01:
And to try to take this one sentence in isolation, as Arista does, and says, oh, well, that must necessarily mean that it is the commands as opposed to the data that's being stored, that's exactly what this court recently said in MIT versus Shire that you can't do, that you have to look at the, quote, selected sentence in the context of the entire response.

[00:26:23] Speaker 01:
And as this court said at 1120, 839, F3 at 1120, quote,

[00:26:30] Speaker 01:
even if an isolated statement appears to disclaim subject matter, the prosecution history as a whole may demonstrate that the patentee committed no clear and unmistakable disclaimer.

[00:26:40] Speaker 01:
And this court made a similar point recently in Trivascular versus Samuels 812F3rd at 1065.

[00:26:48] Speaker 01:
And that's what you have here.

[00:26:49] Speaker 01:
When you look at this prosecution history, there's no disclaimer.

[00:26:52] Speaker 01:
There's no back and forth about commands.

[00:26:56] Speaker 01:
And this is ultimately confirmed

[00:26:58] Speaker 01:
by the notice of allowance at 1593, where the examiner now understands, and this is what the whole issue was, that you now have a centralized database to externally manage router configuration data derived from configuration commands supplied by a user.

[00:27:15] Speaker 01:
So it's all about the data being derived from the commands, and that that was distinguished from the prior art.

[00:27:20] Speaker 01:
This is entirely consistent, of course, with the patent specification.

[00:27:25] Speaker 01:
Indeed, if you look at

[00:27:28] Speaker 01:
If you look at the title, the abstract, the summary of the invention, all of the examples, everything in this patent is about storing data, not commands, storing and then externally managing the data.

[00:27:43] Speaker 01:
In fact, if you look at the first clause of claim 19, element C, it talks about having a database

[00:27:50] Speaker 01:
that is configured to do what?

[00:27:53] Speaker 01:
To store data.

[00:27:55] Speaker 04:
Can you address the argument of your appointment concerning the grammatical usage rule that we should apply here?

[00:28:03] Speaker 01:
Sure, Judge Raina.

[00:28:04] Speaker 01:
Well, first, I don't agree with Mr. Powers that his reading or Arista's reading is the more natural reading of this claim language in context.

[00:28:14] Speaker 01:
When you look at it in the overall context of the claim,

[00:28:18] Speaker 01:
And you look at it in particular in the overall context of the specification, I think it is naturally referring to the data.

[00:28:26] Speaker 03:
Mention the prosecution history as well.

[00:28:29] Speaker 03:
What's that?

[00:28:30] Speaker 03:
Mention the prosecution history as well.

[00:28:32] Speaker 01:
I agree.

[00:28:33] Speaker 01:
I think the prosecution history certainly drives home that this is all about the data that was derived from the commands.

[00:28:40] Speaker 01:
And of course, Strunk and White may be about how one writes with style.

[00:28:44] Speaker 01:
Patent claims are often not written with style, and it's certainly not a tool

[00:28:48] Speaker 01:
for interpretation of a document that has already been- Do you have legal authority backing up that?

[00:28:55] Speaker 01:
I think the court can take judicial notice of that.

[00:28:58] Speaker 01:
But certainly, it's not a tool for how you read a document that has already been written.

[00:29:05] Speaker 01:
And this court has made clear repeatedly, whether it's all the way back in the Ambonk decision in Phillips or in the Finner case that we cite, that you look at claims against the best evidence.

[00:29:15] Speaker 01:
And the best evidence is the specification

[00:29:18] Speaker 01:
And if you look at column, we made this point in our brief, column 8, lines 46 to 53, the language that you find at column 8 is essentially exactly the same limitation that we're talking about here, and it makes clear it's the data that's stored.

[00:29:32] Speaker 01:
Now, in the time that I have remaining, you've got, you're right, right at your rebuttal time right now.

[00:29:37] Speaker 01:
Okay, well, in the time that I have remaining, let me make a few points about the 597 so that I have something to then say on rebuttal, because that is, of course, is our cross appeal.

[00:29:48] Speaker 01:
And first, let me be clear.

[00:29:50] Speaker 01:
I think the issue before the court is a question of law.

[00:29:52] Speaker 01:
There's no dispute about what the products do.

[00:29:55] Speaker 01:
It's just an issue of applying the claim construction to the undisputed facts.

[00:30:01] Speaker 01:
And the undisputed facts are that Arista has an element of its software that will stop, start, and restart agents based on certain information being received.

[00:30:13] Speaker 01:
The only question is whether it takes those actions based on detecting a change.

[00:30:17] Speaker 01:
Now, its own document says that it does.

[00:30:19] Speaker 01:
If you look at appendix 14172.

[00:30:21] Speaker 03:
I'm going to walk you away from your undisputed fact, because when a party challenges the ITC's application of the construction of the record before it, we review it as a question of fact.

[00:30:34] Speaker 01:
Well, I guess the point that I was making, Judge Wallach, is I don't think that there's really a dispute about how Arista's systems operate.

[00:30:44] Speaker 01:
I think the dispute is whether or not that

[00:30:46] Speaker 01:
that rises to the level of being detecting.

[00:30:50] Speaker 01:
And in particular, if you look at Appendix 14172, it's quoted at page 75 of our red brief.

[00:30:58] Speaker 01:
This is in the public record.

[00:31:00] Speaker 01:
It says the process manager detects process exit and starts a new agent.

[00:31:06] Speaker 01:
And there's a similar point at Appendix 14172.

[00:31:09] Speaker 01:
379, and it's part of the confidential record at page 74 of our red brief.

[00:31:14] Speaker 01:
But if you look at the sentence that's underlined there, you see, again, a demonstration about what they say their own systems do.

[00:31:23] Speaker 01:
The whole argument that the administrative law judge went off on, and which the commission then adopted, was the idea that reasoning by inference was not enough.

[00:31:34] Speaker 01:
And we submit it's certainly within the plain meaning of detect,

[00:31:37] Speaker 01:
to infer something.

[00:31:38] Speaker 01:
They're not synonyms.

[00:31:39] Speaker 01:
Detecting by inferring is a subset, and we have some examples of how that works in our brief.

[00:31:46] Speaker 01:
But I would encourage the Court to look at the examples found in Figures 10 and 11 of the 597 patent, because what you will see is that both examples show, both examples involve concluding that a device is untrustworthy

[00:32:05] Speaker 01:
Based on what?

[00:32:06] Speaker 01:
Based on a timing out of not receiving either a log report or a heartbeat.

[00:32:11] Speaker 01:
And you can see that at column 14, line 45, with respect to figure 10, column 15, line 50, with respect to figure 11.

[00:32:21] Speaker 01:
This is exactly what we're talking about vis-a-vis Arista's system.

[00:32:24] Speaker 01:
And I think that if you look at the way that the 597 patent gives examples about what it means to detect, that certainly the limitation should be met here.

[00:32:35] Speaker 01:
I see my time has expired, and with the court's indulgence, we'll take any rebuttal time that you provide.

[00:32:44] Speaker 01:
Thank you.

[00:32:46] Speaker 01:
Thank you, Judge Ranney.

[00:32:47] Speaker 04:
OK.

[00:32:51] Speaker 04:
Council Fischerow?

[00:32:53] Speaker 04:
You've got 15 minutes.

[00:32:55] Speaker 00:
Thank you, Your Honor.

[00:32:59] Speaker 00:
May it please the court, I would first like to address the component issue.

[00:33:03] Speaker 00:
Arista is an adjudicated infringer.

[00:33:06] Speaker 00:
He changed its importation practice with respect to its infringing switches to try to evade relief.

[00:33:12] Speaker 00:
The commission found that the switches infringed the 537 patent.

[00:33:17] Speaker 00:
The commission found that the importation to customers, regardless of the manner in which the switches are broken down for importation, are broken down

[00:33:31] Speaker 00:
for importation.

[00:33:32] Speaker 00:
The Commission has broad discretion in fashioning the scope, form, and extent of its remedies, as long as the remedy has a reasonable relationship to the unlawful practices that have been found to exist.

[00:33:44] Speaker 00:
This is exactly what the Commission did.

[00:33:46] Speaker 00:
Once the Commission finds that an unfair trade act has occurred, it may issue an exclusion order under subsection D. Under Hyundai, Viscofan, and Sealed Air,

[00:33:58] Speaker 00:
The commission has broad discretion in determining the scope of that remedy.

[00:34:02] Speaker 00:
Here the components imported by Arista are used to make the infringing switch.

[00:34:08] Speaker 04:
So you're asking us to look at the ITC decision as a whole.

[00:34:13] Speaker 04:
And they found that the components were infringing in several other patents, but not in this particular patent, or at least it's silent to this.

[00:34:23] Speaker 04:
This is what your opponent is arguing.

[00:34:27] Speaker 00:
Your Honor, I submit that the Commission found that the components do induce infringement.

[00:34:34] Speaker 04:
In this particular patent?

[00:34:35] Speaker 00:
In this particular patent.

[00:34:36] Speaker 04:
Where in the record is that?

[00:34:38] Speaker 00:
I would say that would be at the Commission's APPX 528.

[00:34:53] Speaker 00:
I think it's encompassed within the commission's analysis on this page.

[00:34:57] Speaker 00:
The commission here talks about the switch hardware.

[00:35:01] Speaker 00:
Earlier in its opinion, it also refers to the switch hardware at APX 511.

[00:35:08] Speaker 00:
Go back to 528.

[00:35:10] Speaker 04:
Where is that?

[00:35:15] Speaker 00:
The commission talks about the accused products and the blank switches, and then it analyzes the switch hardware.

[00:35:21] Speaker 00:
And here,

[00:35:23] Speaker 00:
Switch hardware has been defined to include the components.

[00:35:28] Speaker 00:
And so if you look at the context from 511, APPX 511, there the commission's use of switch hardware, it's clear that it refers to the components.

[00:35:39] Speaker 00:
But regardless of whether or not the commission found that these specific components induce infringement, the commission's remedial authority to stop

[00:35:51] Speaker 00:
circumvention of the commission's order.

[00:35:53] Speaker 04:
Here, when this case began, Arista was... The circumvention is a different issue.

[00:35:59] Speaker 04:
But what I'm interested in is, are you arguing that the ITC can make a blanket assertion that all of the components with respect to the patents it's reviewing, that they're all infringing and they're all subject to limited exclusion order?

[00:36:19] Speaker 04:
or rather, let me take that back, I'm sorry, that the components are found to be infringing under these patents, but it makes it silent as to the one we're reviewing now.

[00:36:30] Speaker 04:
And by that, we are to extend that finding to the patent in which the ITC has not made an explicit finding and find that the limited exclusion order covers that.

[00:36:45] Speaker 00:
So if you don't,

[00:36:48] Speaker 00:
except the Commission's position that APPX 520... That appendix, excuse me?

[00:36:55] Speaker 00:
Yes, yeah.

[00:36:56] Speaker 00:
That the page we were just talking about, about the Commission's opinion, makes explicit findings on components.

[00:37:03] Speaker 00:
Components are included within the Commission's finding on the switches themselves.

[00:37:08] Speaker 00:
The Commission found that the switches infringe, the blank switches infringe.

[00:37:14] Speaker 00:
And in order to prevent circumvention,

[00:37:18] Speaker 00:
the commission did not make, with respect to contributory infringement, explicit findings as to the components.

[00:37:25] Speaker 00:
Because Arista had, during the course of the investigation, had a pattern of conduct of changing what it was importing.

[00:37:33] Speaker 00:
And it leads to the question of, if we adopt Arista's approach, every time a respondent changes their importation practice, whether they take off one component, import it, and then reassemble that,

[00:37:48] Speaker 00:
We have to make a new finding.

[00:37:50] Speaker 00:
Here, the commission saw Arista's pattern of conduct and determined that it made a finding of infringement as to the switch and the blank switches, and it didn't need to reach the individual components.

[00:38:06] Speaker 04:
For the future, I would like to see the, if that's the case, and I'd like to see the commission and its decisions making those type of blanket type findings.

[00:38:17] Speaker 04:
Otherwise, I'm going to look for a finding that's explicit to the patents under review.

[00:38:23] Speaker 04:
Now, I understand what you're saying about the circumvention and that the circumvention aspect may have been applicable to all of the components of all the patents.

[00:38:33] Speaker 04:
But I need to see that.

[00:38:34] Speaker 04:
I'm hesitant to extend findings made specifically for other patents to every single patent that's under review.

[00:38:45] Speaker 04:
even just a statement would suffice.

[00:38:47] Speaker 04:
I mean, go on with your argument.

[00:38:48] Speaker 04:
I'm just telling you that to take back home.

[00:38:53] Speaker 00:
Yes, Your Honor.

[00:38:54] Speaker 00:
I think, though, if you look at APPX 527, where the Commission expressly discusses the contributory infringement, it specifically says if the Commission

[00:39:07] Speaker 00:
If Arista attempts to circumvent commission remedy by importing only the components of the accused products for reassembly into complete functional switches, it would still be in violation because it finds the blank switches and the fully and both complete switches indirectly infringe.

[00:39:24] Speaker 00:
So here the commission is saying we found infringement and to avoid the circumvention, we're not reaching this because Arista is going to continue to change its import,

[00:39:36] Speaker 00:
importation practice.

[00:39:42] Speaker 00:
And under Hyundai, ViscoFan, and sealed air, the commission has broad discretion to do this.

[00:39:49] Speaker 00:
As this court stated in ViscoFan, the FTC's wide discretion in fashioning the scope of its remedy is applicable to the commission.

[00:40:00] Speaker 00:
And in RubberRoyd, the FTC specifically stated

[00:40:03] Speaker 00:
that the FTC's authority is not limited to prohibiting the illegal practice in the precise form in which it is found to have existed in the past, and that the commission must be allowed effectively to close all roads to the prohibited goals so that its order may not be bypassed with impunity.

[00:40:21] Speaker 00:
This is exactly the type of circumstance we have here that the commission was seeking to prevent circumvention.

[00:40:28] Speaker 04:
Could you address the claim construction issue?

[00:40:31] Speaker 00:
Yes, Your Honor.

[00:40:35] Speaker 00:
The commission believes that the language of the claims is clear.

[00:40:40] Speaker 00:
Even if the court doesn't agree with that, the case law is clear that you look to the context of the claims.

[00:40:47] Speaker 00:
Here, that is the specification, the other limitations, the other claims, as well as the prosecution history.

[00:40:55] Speaker 00:
And nowhere does this specification teach storage of commands.

[00:41:01] Speaker 00:
Yes, as Mr. Power stated, it teaches

[00:41:05] Speaker 00:
that data is sent to a database, but at no point does it talk about it being stored.

[00:41:11] Speaker 00:
Instead, as Mr. O'Quinn pointed due to column 8 of the specification, that teaches that it's the router configuration data that is stored.

[00:41:24] Speaker 00:
Turning to the prosecution history and the office action at issue, I would like to walk the court through this office action, just like Mr. Powers.

[00:41:35] Speaker 00:
And if we start at APPX 1564, in this response, the applicant explains to the examiner that CISCAN does not disclose, teach, or suggest the execution of user-supplied configuration commands that results in configuration of data that is stored in a database.

[00:41:54] Speaker 00:
To arrive at this point, the applicant directly responded to the examiner's rejection and used the term specifically

[00:42:01] Speaker 00:
as it addressed the columns and lines that the examiner relied on to reject these claims.

[00:42:09] Speaker 00:
And the applicant at the top of 1565 explains that there are no commands in CISCON.

[00:42:16] Speaker 00:
After that, in the very next paragraph, it explains that CISCON and the execution of the comparison of the data fields in CISCON is not the equivalent of executing configuration commands.

[00:42:32] Speaker 00:
it is simply a comparison of the data structures.

[00:42:36] Speaker 00:
And then finally, in that last paragraph, the user talks about what is stored.

[00:42:44] Speaker 00:
And just like the specification, there's no real discussion of storage other than this paragraph and the one sentence taken out of context that Arista relies on.

[00:42:55] Speaker 00:
And in this sentence,

[00:42:57] Speaker 00:
The applicant expressly says, there is no disclosure, teaching, or suggestion in CISCON that the execution of user-supplied configuration commands results in configuration data that is stored in a database.

[00:43:10] Speaker 00:
That is talking about what is stored here.

[00:43:12] Speaker 00:
And the them in the sentence at issue that Arista relies on must be the configuration data.

[00:43:20] Speaker 00:
That's what the rest of this office section is talking about.

[00:43:24] Speaker 00:
It's how that

[00:43:25] Speaker 00:
configuration data is derived and the storage of that data.

[00:43:29] Speaker 00:
The Commission submits that the claim specification and prosecution history are clear that what is stored in the database is the router configuration data.

[00:43:43] Speaker 00:
If there are no further questions on this issue, I would like to turn to Cisco's appeal.

[00:43:55] Speaker 00:
Substantial evidence supports the Commission's finding that the asserted three mechanisms of Arista's products do not detect a change in configuration as construed by the Commission.

[00:44:06] Speaker 00:
This means that the evidence is sufficient that a reasonable mind might accept the conclusion.

[00:44:13] Speaker 00:
Here, that is the case.

[00:44:16] Speaker 00:
Cisco asserts that the Commission's finding actually supports its position, but this is not so.

[00:44:23] Speaker 00:
The commission found that the first and second mechanisms at most infer whether an agent is operating by relying on the testimony of Dr. Duda and two other documents.

[00:44:36] Speaker 00:
I'm not going to go into the evidence that the commission relied on because it's on the confidential record, Your Honor, but this evidence supports the commission's determination that this is not a change in configuration as defined

[00:44:53] Speaker 00:
as construed by the Commission.

[00:44:58] Speaker 00:
And turning to the other two mechanisms at issue, I would like to point out most of this is also on the confidential record, so I'm going to leave it to Mr. Powers to discuss this.

[00:45:10] Speaker 04:
The estoppel argument that we're talking about?

[00:45:13] Speaker 00:
I was going to talk about mechanism, the third mechanism that, and I'll turn to estoppel, if you're on her.

[00:45:20] Speaker 00:
This third mechanism,

[00:45:22] Speaker 00:
also is not detecting a change in configuration, but instead is detecting something else.

[00:45:32] Speaker 00:
And the evidence that the commission relies on, which is testimony that is found at APPX 11288 through page 9, and then APPX 6018, and that's Dr. Hollingsworth, and then testimony of Dr. Wicker at APPX 15005 through 06,

[00:45:52] Speaker 00:
18999 and 19,000 as well as 6068 all demonstrates that this third mechanism at issue is not detecting a change in configuration of the subsystem, but instead is detecting the change in configuration of something else.

[00:46:15] Speaker 00:
Here, Cisco takes snippets of a document the Commission relied upon out of context.

[00:46:20] Speaker 00:
If you look at

[00:46:21] Speaker 00:
The entire context of this document, which portions of it on APPX 14378 and the top of 14379 describe exactly what is happening here.

[00:46:36] Speaker 00:
And Dr. Hollingsworth's testimony at 11288 through 9 is in line with the commission's interpretation of this document.

[00:46:48] Speaker 00:
On the issue of prosecution history,

[00:46:50] Speaker 00:
if the court has no questions on the infringement issue.

[00:46:55] Speaker 00:
The commission adopted the ALJ's finding that a sign or estoppel prevents Arista from challenging whether or not the 597 patent is directed to patent in an eligible subject matter.

[00:47:09] Speaker 00:
Here, the inventor of the 597 patent at Cisco, and later a founder of Arista, stated in his assignment that he is, quote,

[00:47:20] Speaker 00:
He is the original, first, and sole inventor of subject matter, parentheses, processing, machine, manufacture, or composition of matter, or an improvement thereof, which is claimed and for which a patent is sought.

[00:47:38] Speaker 00:
And that can be found at APPX 14249.

[00:47:42] Speaker 00:
This assignment didn't include a carve-out for changes in the law.

[00:47:47] Speaker 00:
This court in CLS

[00:47:50] Speaker 00:
Blank said that 101 is not a threshold issue.

[00:47:54] Speaker 00:
So here, the commission submits that it appropriately determined that a sign or a stop bill applied in this circumstance.

[00:48:01] Speaker 00:
So no further questions, Your Honor.

[00:48:03] Speaker 04:
Thank you very much.

[00:48:07] Speaker 04:
Mr. Powers, I had made a mistake.

[00:48:09] Speaker 04:
You had actually run out of time, but I'm going to restore you to three minutes, OK?

[00:48:13] Speaker 04:
Thank you, Your Honor.

[00:48:23] Speaker 02:
I'd like to begin with the crane construction issue for May.

[00:48:28] Speaker 02:
The question before the court is whether the language that Red naturally requires storing of commands is sufficiently ambiguous not to require that.

[00:48:36] Speaker 02:
The file history, I think, eliminates any possible ambiguity.

[00:48:39] Speaker 02:
The statement we rely upon is simply not understandable in any other way than being consistent with the requirement that the commands themselves are stored, no matter what SISCON had.

[00:48:50] Speaker 02:
They said it.

[00:48:51] Speaker 02:
They're stuck with it.

[00:48:52] Speaker 02:
It's not a question of disclaimer.

[00:48:54] Speaker 02:
It's a question of understanding the meaning of the words they used and watching how they use those words in the file history.

[00:48:59] Speaker 02:
Council for Cisco argues that, well, it may not have been artfully written.

[00:49:04] Speaker 02:
Well, we think it's pretty clearly written.

[00:49:06] Speaker 02:
And the argument in the file history is quite clear and unmistakable.

[00:49:11] Speaker 02:
Council for Cisco argues that at 1565, it's all about the data, 1565 of the appendix.

[00:49:18] Speaker 02:
The very next sentence, though, and he was fairly aggressive in saying, after that snippet, it's total all about the data.

[00:49:24] Speaker 02:
Not so.

[00:49:25] Speaker 02:
The very next sentence on the portion he read says as follows.

[00:49:28] Speaker 02:
The novelty here is that this claim limitation provides a way to incorporate a database into managing user-supplied configuration commands.

[00:49:37] Speaker 02:
That's the very next sentence.

[00:49:39] Speaker 02:
It's not all about the data.

[00:49:40] Speaker 02:
It is partially about the data, for sure, but not all about the data.

[00:49:44] Speaker 02:
He then relies upon the Notice of Allowance to say, well, this argument didn't make any difference.

[00:49:49] Speaker 02:
Again, not so.

[00:49:50] Speaker 02:
When you look at the actual Notice of Allowance at 1593,

[00:49:54] Speaker 02:
It says, in addition, we rely on applicants' arguments, which include the argument that ultimately won the day, in addition to the rest of the claim limitations.

[00:50:03] Speaker 02:
So the arguments that are made simply cannot be reconciled with the statements that their patent attorney made.

[00:50:09] Speaker 02:
They then argue, well, that's merely a snippet out of context.

[00:50:12] Speaker 02:
Again, not so.

[00:50:13] Speaker 02:
It's the culmination.

[00:50:15] Speaker 02:
They tried to get the claims allowed by using the data limitation.

[00:50:19] Speaker 02:
That wasn't enough.

[00:50:19] Speaker 02:
The examiner said it's obvious.

[00:50:21] Speaker 02:
Then they made this argument, and it was enough.

[00:50:24] Speaker 02:
It's not a snippet out of context.

[00:50:26] Speaker 02:
It is the thing which got it allowed, because that is the only new argument that was made.

[00:50:31] Speaker 02:
Now, with regard to the ITC jurisdiction, this is not a question about circumvention.

[00:50:36] Speaker 02:
Not.

[00:50:37] Speaker 02:
Because the issue isn't whether you can change something and get in the door otherwise.

[00:50:43] Speaker 02:
The question is a question of jurisdiction.

[00:50:45] Speaker 02:
Had the ITC made a finding in this case as to this pattern, we wouldn't be here on this issue.

[00:50:52] Speaker 02:
And if they made a finding about that, they have various ways of avoiding circumvention of their orders.

[00:50:58] Speaker 02:
The point is they did not make that finding.

[00:51:01] Speaker 02:
They specifically said we don't need to reach it after going through great detail and finding in contributory and indiscriminate infringement.

[00:51:08] Speaker 02:
When did they say that?

[00:51:10] Speaker 02:
They said that at 527 and 528 of the record.

[00:51:16] Speaker 02:
And you compare that with 550 and 551.

[00:51:20] Speaker 02:
where they made explicit findings on other patents, there is simply not a way to find an inferred finding on this record.

[00:51:28] Speaker 04:
But if you're dealing with the same components for all of the patents, then what difference does it make if they make an explicit finding for three other patents but not the fourth one?

[00:51:38] Speaker 02:
They're different inventions.

[00:51:39] Speaker 04:
It's a same component.

[00:51:41] Speaker 02:
Because for contributory infringement, it has to be a material part of the invention.

[00:51:45] Speaker 02:
The PV land patents are different inventions.

[00:51:47] Speaker 02:
The fact that it's material to PV land doesn't mean it's material to this.

[00:51:51] Speaker 02:
For inducement, the requirement is that it actually induce infringement.

[00:51:55] Speaker 02:
The fact that it may have induced PV land doesn't mean it induces this infringement.

[00:51:59] Speaker 02:
They are different inventions, and you must prove it and find it.

[00:52:02] Speaker 02:
That's necessary to their jurisdiction.

[00:52:04] Speaker 02:
As to 597, the issue is not a question of law.

[00:52:09] Speaker 02:
It's specifically a question of whether there's substantial evidence in the record.

[00:52:12] Speaker 02:
The commission's finding, as cast for the ITC, fact-finding was extensive.

[00:52:17] Speaker 02:
And what Cisco's argument boils down to is you can infer whether a process has stopped running.

[00:52:24] Speaker 02:
But that is not a change of configuration or state under the client construction the commission used, which Cisco has not challenged.

[00:52:33] Speaker 02:
That commission finds the configuration changes are limited to those in the 597 patent, not all changes.

[00:52:39] Speaker 02:
And it enumerates those.

[00:52:41] Speaker 02:
Okay, Mr. President, I'm going to ask you to conclude.

[00:52:44] Speaker 02:
Thank you, Your Honor.

[00:52:45] Speaker 02:
Under the, the only other issue I wanted to reach was the asking of estoppel question.

[00:52:49] Speaker 02:
There's no representation about the legal question in the vendor's oath.

[00:52:53] Speaker 02:
About the legal question of whether that's eligible subject matter.

[00:52:56] Speaker 02:
You can read that oath ten times and it won't be there.

[00:52:59] Speaker 02:
So estoppel requires a representation and reliance.

[00:53:02] Speaker 02:
Neither is present here.

[00:53:03] Speaker 02:
It's a legal question.

[00:53:05] Speaker 04:
All right.

[00:53:05] Speaker 04:
Thank you very much.

[00:53:07] Speaker 04:
Mr. Quinn.

[00:53:11] Speaker 04:
And you have three minutes.

[00:53:14] Speaker 01:
Thank you again, Judge Raina.

[00:53:15] Speaker 01:
I'm happy to answer any questions the Court may have, but otherwise I'll just address the 597 issues on rebuttal.

[00:53:22] Speaker 01:
First, just so it's clear to the Court, the Commission, we and the Commission are in agreement that a sign or a stop-all does apply to the challenge of invalidity.

[00:53:31] Speaker 01:
The disagreement between us and the Commission, of course, is whether or not there's infringement of the 597 patent.

[00:53:37] Speaker 01:
And a point that Mr. Powers made, I think, is an important one.

[00:53:40] Speaker 01:
If you look at appendix 537, the commission found that the change in state of certain things is equivalent to a change in configuration.

[00:53:50] Speaker 01:
And there's no question, there's really no dispute that there is a change in state with respect to how Arista's systems operate.

[00:53:57] Speaker 01:
And again, if you look at the evidence at appendix 10336 to 338, there's a combination of certain features that work together to directly detect

[00:54:09] Speaker 01:
that an agent is no longer running, that is a change in state.

[00:54:13] Speaker 01:
Similarly, if you look at Appendix 14.172, and some of this is confidential, so I won't discuss the details of that, but they all confirm our position.

[00:54:24] Speaker 01:
And indeed, the whole argument that Arista made to the ALJ, which the ALJ did not adopt, was that there was no change in configuration, that a change in state was not the same as a change in configuration.

[00:54:37] Speaker 01:
The ALJ then, for the first time, adopts this approach to detecting, saying that detecting doesn't include inferring.

[00:54:46] Speaker 01:
But of course, the plain meaning of detecting does include the term inferring.

[00:54:51] Speaker 01:
And to the extent there's any doubt about that, and you heard what Mr. Powers said about reasoning by inference or by assumptions not being enough, that's belied by the examples that are found at Figure 10 and Figure 11.

[00:55:06] Speaker 01:
of the 597 patent.

[00:55:09] Speaker 01:
And ultimately, it's really no surprise, or shouldn't be a surprise, that Arista's switches would have these patented features, given the ITC's finding that Arista has a corporate culture of copying Cisco, as well as the fact that this technology was developed by Arista's founder while he was a Cisco employee and assigned to Cisco.

[00:55:31] Speaker 01:
And that is exactly why, of course, if the court were to reach the issue of

[00:55:36] Speaker 01:
a sign or a stopple.

[00:55:37] Speaker 01:
A sign or a stopple absolutely should apply and there's no basis for a section 101 exception to a sign or a stopple.

[00:55:44] Speaker 01:
If the court has any further questions, I'm happy to answer those as well.

[00:55:47] Speaker 04:
Otherwise... Are the components that we're talking about here, it's a switch hardware, correct?

[00:55:53] Speaker 01:
That's exactly right.

[00:55:54] Speaker 01:
It's components and you can see them explained by the ALJ at Appendix 682.

[00:56:01] Speaker 01:
Processors, memory, CPU cards, chassis, switch cards, and fan modules.

[00:56:08] Speaker 04:
OK.

[00:56:08] Speaker 04:
No other questions?

[00:56:10] Speaker 04:
Thank you, Mr. Quinn.

[00:56:11] Speaker 01:
Thank you, Your Honor.

[00:56:12] Speaker 04:
This is of course now in recess.

[00:56:15] Speaker 03:
Let me just tell you, Mr. Oakman, I disagree with you about the lack of style in patent writing.

[00:56:21] Speaker 03:
I think it's baroque.