[00:00:00] Speaker 02:
that we've consolidated for purposes of oral argument.

[00:00:04] Speaker 02:
And that's Crossroads Systems versus Oracle Corporation.

[00:00:08] Speaker 02:
And let me make sure that I have the order of the arguments correct.

[00:00:13] Speaker 02:
Mr. Dragseth, you're going to speak first, and you're going to go for eight minutes, reserving four for rebuttal.

[00:00:20] Speaker 02:
Correct.

[00:00:20] Speaker 02:
Mr. Courtney, you're going to argue for eight minutes.

[00:00:25] Speaker 02:
And for the appellant, Napoli, respondent, cross upon,

[00:00:30] Speaker 02:
We have Mr. Emke going for 14 minutes, is that correct?

[00:00:36] Speaker 02:
And then Mr. Bobrow for six.

[00:00:39] Speaker 02:
Okay.

[00:00:41] Speaker 02:
May it proceed.

[00:00:42] Speaker 05:
May it please the Court.

[00:00:43] Speaker 05:
Your Honors, today we intend to split our time with me talking about the mapping between issues, mainly the issues in the Cisco appeal, but also somewhat in the Oracle appeal, and then Mr.

[00:00:55] Speaker 05:
Courtney will handle the... And this issue cuts across both of the cases, right?

[00:01:00] Speaker 05:
The mapping between it cuts across both, right.

[00:01:03] Speaker 05:
And then Mr. Courtney will talk about the Kikuchi and the access control issue, but will also respond to whatever questions you might ask, just trying to give a preview.

[00:01:14] Speaker 05:
This is an odd appeal, especially with regard to the mapping between, because the petitioners argue below, and they argue on appeal, that mapping to a device

[00:01:24] Speaker 05:
out on the network is the same as mapping to a court inside your box.

[00:01:30] Speaker 05:
But the board didn't hold that.

[00:01:32] Speaker 05:
The board backed up, and they said, well, they're almost the same.

[00:01:36] Speaker 05:
They said they're tantamount to that their effect is the same.

[00:01:39] Speaker 05:
But they didn't say that they're the same.

[00:01:41] Speaker 05:
And so we have a situation here where there's a disconnect between what the board did and what the parties will argue.

[00:01:47] Speaker 05:
Now, the problem with the board's central reasoning is that's not the law.

[00:01:52] Speaker 05:
OK, tantamount to is not

[00:01:53] Speaker 01:
One limitation tantamount to another limitation.

[00:01:56] Speaker 01:
The claim construction says representation of devices on either side of the storage router, right?

[00:02:03] Speaker 01:
For the term map to, yes.

[00:02:05] Speaker 01:
For the mapping limitation.

[00:02:06] Speaker 01:
OK.

[00:02:07] Speaker 01:
So as I understood the board's reasoning, it concluded that the channel numbers in the CRD manual

[00:02:21] Speaker 01:
our representation of each of the host devices because each channel, each channel number is assigned to a single host device as shown in figure 1-2 of the CRD manual.

[00:02:36] Speaker 01:
I think you have that right.

[00:02:37] Speaker 01:
So what's wrong with that?

[00:02:40] Speaker 05:
So I think what you have to do really to understand what went wrong here is look at the claims in their completeness to figure out where this map has to be.

[00:02:48] Speaker 01:
I guess going back to the CRD manual, is there

[00:02:51] Speaker 01:
Wouldn't you say there's some kind of mapping going on there in the sense that for each host device, there's a connection between or through that controller to a redundancy group on the other side of the router.

[00:03:12] Speaker 01:
And so therefore, that host device can access

[00:03:17] Speaker 01:
data from some remote storage device in the redundancy group through the controller.

[00:03:24] Speaker 01:
There's a map to the channel and there's a connection.

[00:03:28] Speaker 01:
There's not a map to the device.

[00:03:30] Speaker 01:
There isn't a broken link between the channel and the host computer, right?

[00:03:37] Speaker 01:
The host computer is able to reach out and grab data from some remote storage device on the other side of

[00:03:46] Speaker 01:
the CRD manual's controller.

[00:03:48] Speaker 01:
Whatever that device might be.

[00:03:49] Speaker 05:
Yeah.

[00:03:50] Speaker 05:
But it doesn't know what that device is.

[00:03:52] Speaker 05:
Now, you ask me, where is this in the claim?

[00:03:54] Speaker 05:
It's where you should go next.

[00:03:55] Speaker 05:
And if you look at claim 21, which is on page 8 of the blue brief, the claim lays out each part of this system.

[00:04:05] Speaker 05:
And there's five, maybe seven things.

[00:04:08] Speaker 05:
There's a first controller, a second controller.

[00:04:11] Speaker 05:
Those are the cards that go into the box, the network interface cards, really.

[00:04:16] Speaker 05:
There's a storage device at the end of a medium, another storage device at the end of a medium.

[00:04:21] Speaker 05:
We're not to the map yet.

[00:04:23] Speaker 05:
And then there's the access control device.

[00:04:25] Speaker 05:
This is the central brain of the box.

[00:04:30] Speaker 05:
And if you look at figure four, we show that.

[00:04:32] Speaker 05:
But it's the thing that does the routing.

[00:04:34] Speaker 05:
And that's where the mapping has to occur.

[00:04:37] Speaker 05:
The map can't be in the whole city.

[00:04:39] Speaker 05:
You can't back up and say, well, when I look at the whole system, I see a connection.

[00:04:43] Speaker 05:
So there's a map in this system.

[00:04:45] Speaker 05:
from one end to the other.

[00:04:47] Speaker 05:
The claim requires that the map be in the central brain of the device.

[00:04:52] Speaker 05:
So let's zoom in on the CRD5500 brain, and all that's there in that one table is the channel.

[00:05:02] Speaker 05:
There is no device there.

[00:05:04] Speaker 05:
The only way they can get the device in is by zooming out from this access control device, what they've read it on in the CRD, and looking at the rest of the system.

[00:05:15] Speaker 05:
And that's the fundamental difference.

[00:05:17] Speaker 05:
All of these planes require the map to be in the brain of the device, not out in the way that the system is connected.

[00:05:24] Speaker 05:
And you see it in the specification, top to bottom.

[00:05:28] Speaker 05:
That's the only reason that we are able, because we can see outside the box, we can have the multiple computers connected.

[00:05:34] Speaker 01:
What about the 147 patents disclosure of the arbitrated loop physical address?

[00:05:42] Speaker 01:
As I understand it, that's a port identifier.

[00:05:45] Speaker 05:
a port, the device's port, the storage device's port, not the router's port.

[00:05:50] Speaker 01:
So I guess what I see in that discussion in the spec is not necessarily an address for the device itself, per se.

[00:06:06] Speaker 01:
I see an address for this port.

[00:06:11] Speaker 05:
It's a port on the device, so it is an address.

[00:06:15] Speaker 01:
constantly changing?

[00:06:16] Speaker 05:
Sure, so I'll take those two points, because one of them relates to their immutability argument.

[00:06:21] Speaker 05:
One, I think, relates to their intermediate addressing.

[00:06:24] Speaker 05:
Let's use something a little bit more modern, a laptop computer that has a network card inside.

[00:06:29] Speaker 05:
That has a port, whether it's a wireless port, I guess, or a plugged-in port.

[00:06:33] Speaker 05:
That is in the device.

[00:06:34] Speaker 05:
That is an address of the chip that does the networking in your computer, just like in our patent when we talk about the port

[00:06:42] Speaker 05:
for this device, the fiber channel port.

[00:06:45] Speaker 05:
That is the device.

[00:06:47] Speaker 05:
It's a port on the device.

[00:06:48] Speaker 05:
It's not something in between.

[00:06:50] Speaker 05:
It's the device itself.

[00:06:51] Speaker 05:
So our patent isn't describing that you're talking to something that isn't the device.

[00:06:57] Speaker 05:
You are specifying the address for that device.

[00:07:00] Speaker 05:
So that's the intermediate.

[00:07:03] Speaker 01:
OK, so just so I understand, the ALPA is

[00:07:12] Speaker 01:
is part of some fiber channel arbitrate loop, right?

[00:07:17] Speaker 05:
The ALPA is assigned to the card at the device that's connected to the loop.

[00:07:24] Speaker 05:
They call the whole thing a port.

[00:07:25] Speaker 05:
The computer is where the loop is just a wire spliced together.

[00:07:30] Speaker 05:
The brains are on the interface card.

[00:07:35] Speaker 05:
You see it in the patent for the cards that are in the box.

[00:07:38] Speaker 05:
They are a port.

[00:07:40] Speaker 05:
They're the channel.

[00:07:41] Speaker 05:
and the chip is on that card for connecting to the fiber channel, and then out on the loop for each of the computers.

[00:07:49] Speaker 01:
So there's a loop, there's a card, and then there's the device.

[00:07:53] Speaker 05:
No.

[00:07:53] Speaker 05:
Well, the card is in the device, so the card is part of the device.

[00:07:58] Speaker 05:
This card is not just floating around somewhere.

[00:08:01] Speaker 05:
It's a card that is, you think if you open up your desktop computer, we used to, now it's all soldered right into the motherboard, but you put a

[00:08:10] Speaker 05:
a network card into your computer, that is the device.

[00:08:14] Speaker 05:
I think we're splitting hairs a little bit about is the card that's plugged into the device the device?

[00:08:21] Speaker 05:
Even if it's not, even if you said, well, the computer isn't the stuff that's inside the computer for some reason, that doesn't get you all the way to saying, well, the card that's in a completely different place inside the router counts, which is what the board did.

[00:08:39] Speaker 05:
The board said, well, we're going to decide that this card in the computer isn't exactly the computer.

[00:08:46] Speaker 05:
So any card can count under these claims.

[00:08:50] Speaker 05:
And that's not the case.

[00:08:51] Speaker 05:
What is happening with that fiber channel card that's out at the device is that's unique to that one device.

[00:09:00] Speaker 05:
It's in the device.

[00:09:01] Speaker 05:
It is the device.

[00:09:03] Speaker 05:
It can't be switched.

[00:09:06] Speaker 05:
pull the computer apart to take it, but it doesn't change in the way that pulling a cable out of the router does.

[00:09:14] Speaker 05:
You're able to see out, and that address is the address for that device.

[00:09:17] Speaker 05:
It's not the address for the wire, it's not the address for the channel, it's the address for that device.

[00:09:24] Speaker 05:
Now you mentioned the immutability point, the fact that these addresses, the numbers could change, but you reboot the loop, it's still,

[00:09:33] Speaker 05:
Their assertion is that we said that can't be, that the system has to be immutable.

[00:09:37] Speaker 05:
We never said that.

[00:09:39] Speaker 02:
You're into your rebuttal time.

[00:09:40] Speaker 02:
You can continue or stop here.

[00:09:44] Speaker 05:
It can change, but it's still the number for the device.

[00:09:48] Speaker 05:
So if you boot it up, that device may get a different number, but it's still the number for that device and not for a port that's on the router.

[00:09:57] Speaker 02:
We'll restore your four minutes rebuttal time.

[00:10:06] Speaker 00:
Your Honors, I'll speak about the diligence issues that are in the 1930 appeal.

[00:10:11] Speaker 00:
This is only an issue in the oracle appeal.

[00:10:15] Speaker 00:
We think the board committed a significant legal error here in applying the wrong diligence standard.

[00:10:21] Speaker 00:
There are two aspects to the error that we see here.

[00:10:25] Speaker 00:
The board's diligence analysis was highly, highly restrictive, highly, highly formalized, and excessively focused on a single limitation

[00:10:34] Speaker 00:
of what's actually a much larger claim.

[00:10:35] Speaker 00:
As Mr. Dragstaff described, Crossroads claims describe system or device, some claims are methods, but it has numerous parts.

[00:10:44] Speaker 00:
There are controllers, there are devices, storage, a router at the center.

[00:10:49] Speaker 02:
Our standard to review on this particular issue is whether the decision is supported by substantial evidence, correct?

[00:10:58] Speaker 00:
Not as to legal issues, Your Honor.

[00:10:59] Speaker 00:
We would submit that the board's error here was in the nature of legal standards.

[00:11:03] Speaker 02:
On the factual findings, it's substantial evidence?

[00:11:05] Speaker 00:
To the extent that the board applied the correct legal standard, it would be a substantial evidence review.

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

[00:11:11] Speaker 00:
Again, we think that the error here was legal in nature with hyper-restrictive review.

[00:11:15] Speaker 00:
We would point in our brief describe the Barbasid case, which rejects the board's restrictive approach.

[00:11:23] Speaker 00:
The board said, if you're not working on access control, this one part of the larger claim

[00:11:28] Speaker 00:
then none of that work counts, per se.

[00:11:30] Speaker 04:
But even if you're correct with respect to this interval one, what about interval two, where the so-called Verrazano project had already been completed?

[00:11:45] Speaker 04:
What about interval two?

[00:11:48] Speaker 00:
board introduced this taxonomy of interval one and interval two, I think these are not actually intervals.

[00:11:53] Speaker 00:
I think that's how the board divided its analysis of technical diligence from its analysis of prosecution diligence.

[00:11:58] Speaker 00:
That interval two was focused on prosecution.

[00:12:01] Speaker 00:
We would submit that technical activities were continuing throughout both interval one and interval two through the entire critical period, right up until the filing of the application that gave rise to the patents.

[00:12:12] Speaker 02:
Did any of that activity include work on the

[00:12:17] Speaker 02:
the features of the pen?

[00:12:19] Speaker 00:
Absolutely, Your Honor.

[00:12:21] Speaker 00:
I think our brief lays out there was work going on on setting up these controllers to interact properly with the router.

[00:12:27] Speaker 00:
There was work setting up storage devices, making sure the storage device communicated via the controller with the router.

[00:12:34] Speaker 00:
There was work on the network devices, making sure they communicated via the controller with the router.

[00:12:39] Speaker 00:
These are low-level functions.

[00:12:41] Speaker 00:
These are core to the aspect of any network system.

[00:12:44] Speaker 00:
Without them, the device doesn't work.

[00:12:47] Speaker 00:
The board took this approach and said none of that counts because you weren't working on access control, but we couldn't reduce the invention to actual practice unless we designed a system that could perform the functions set out in the non-access control limitations.

[00:13:00] Speaker 00:
And we think Barbasid, we also cite the Koyama and Monsanto cases, highlights the error here.

[00:13:06] Speaker 00:
We sent in a letter late last week on Perfect Surgical Technologies' case.

[00:13:12] Speaker 00:
We think that is highly illustrative here, and Perfect Surgical

[00:13:16] Speaker 00:
this court cast a very critical eye on hyper-restrictive diligence analysis.

[00:13:20] Speaker 00:
It criticized the board for being overly restrictive and applying a highly formalistic approach, and we think that's instructive here.

[00:13:29] Speaker 00:
We think Perfect Surgical and the other cases we cite make pretty clear that the board's diligence analysis... You're referring to the Jolly case right now?

[00:13:38] Speaker 00:
I was specifically referring to Perfect Surgical, but I'm happy to discuss Jolly as well.

[00:13:42] Speaker 00:
We also cited Jolly.

[00:13:44] Speaker 00:
That's a case in which

[00:13:45] Speaker 00:
This court affirmed a diligence finding where the core diligence activity, again, was on a project that did not practice the count.

[00:13:55] Speaker 00:
The inventors there were working on it.

[00:13:58] Speaker 00:
It was a lubricant.

[00:13:59] Speaker 00:
They had a two-compound lubricant.

[00:14:01] Speaker 00:
Had they made it to a three-compound lubricant, they would have practiced the count.

[00:14:05] Speaker 00:
But they were only at two.

[00:14:06] Speaker 00:
And this court affirmed the board's holding that, well, you work on two, and then you get to three.

[00:14:12] Speaker 00:
There's a showing here that you're on your way.

[00:14:14] Speaker 00:
And we think that's what the evidence here showed.

[00:14:16] Speaker 00:
The Crossroads inventors were working on the claimed storage router.

[00:14:20] Speaker 00:
They had begun getting the networking working, hardware, software integration.

[00:14:25] Speaker 00:
I think that's not materially disputed.

[00:14:29] Speaker 01:
Can you speak to the finding by the board that the control access part of the claimed invention here was left to the side during the work on the Verrazano project?

[00:14:44] Speaker 00:
We would dispute that it was left to the side, Your Honor.

[00:14:46] Speaker 00:
I think the record here shows that, as is common in electrical engineering, there was a road map for this product.

[00:14:53] Speaker 00:
The product was going to begin by getting the foundational features working, and then we would work our way up the stack.

[00:14:59] Speaker 00:
Once things were communicating properly, once the fiber channel was working, the controllers were having devices, all that are working, then at that point, the access control can be layered in.

[00:15:08] Speaker 00:
So it's a continuous path

[00:15:10] Speaker 00:
that leads all the way from, there's some preconception activity.

[00:15:13] Speaker 01:
But didn't the board make a finding that it found that the inventors could have chosen to work on the control access feature but chose not to, why?

[00:15:26] Speaker 01:
Because it needed to work on the Verrazano project for finance reasons and so therefore it left the

[00:15:36] Speaker 01:
control access feature to the side.

[00:15:38] Speaker 01:
I mean, that's a finding made by the board.

[00:15:40] Speaker 01:
So now I'm trying to figure out why is that an unreasonable finding to make.

[00:15:45] Speaker 00:
So I would submit there's a mixture there of a factual finding and a legal conclusion.

[00:15:50] Speaker 00:
Certainly there was testimony in the record that Crossroads had decided that access control would come at a later phase of the project's development.

[00:15:59] Speaker 00:
We're not disputing that.

[00:16:02] Speaker 00:
That's a fact that no one disputes.

[00:16:04] Speaker 00:
What the legal consequence of that is, I think, is where the board went wrong.

[00:16:09] Speaker 00:
The board said, ah, you set it aside.

[00:16:12] Speaker 00:
You decided to work on it later.

[00:16:13] Speaker 00:
That means you are ipso facto non-diligent, reducing your claim to practice.

[00:16:17] Speaker 00:
And we say, we would submit that under jolly, barbacid, perfect surgical, that's an incorrect application of the facts to the law.

[00:16:26] Speaker 00:
Under the law, we would say those cases permit an inventor, even if he takes a winding path to reduction to practice,

[00:16:33] Speaker 00:
the inventor can choose the path he will, so long as he is at all times reasonably engaged in the project that will bring the invention into actual practice.

[00:16:42] Speaker 00:
Here, of course, constructive reduction of practice kind of interrupted the flow.

[00:16:45] Speaker 00:
But they were, in fact, on the path.

[00:16:48] Speaker 00:
And there's testimony in the record that they later did actually reduce as well, brought access control into Verrazano as they had planned.

[00:16:54] Speaker 02:
You say reasonably engaged if there's no finding that

[00:17:00] Speaker 02:
there was work being conducted on the access control feature, then is that reasonably engaged?

[00:17:06] Speaker 00:
We would tender that the undisputed record of us working on non-access control features establishes that we were reasonably engaged in bringing the entire invention to reduction to practice.

[00:17:17] Speaker 00:
We were not disputing that access control on the record here had been put in the timeline to come after the foundational networking was done.

[00:17:26] Speaker 00:
I only have a little bit of time left, so I want to make sure that I talk a little bit about the nature of the challenge below.

[00:17:31] Speaker 00:
Before the board, Oracle's attack on this evidence was the legal attack, work on non-access control limitations doesn't count.

[00:17:42] Speaker 00:
They did not attack the quantum of our diligence evidence.

[00:17:45] Speaker 00:
So we would say that if the board finds legal error here and finds that work on the non-access control, I'm sorry, the court finds legal error, and finds that work on the non-access control limitations counted, that's grounds for reversal.

[00:17:56] Speaker 01:
Was the Verzano project conceived of before this claimed invention was conceived of?

[00:18:04] Speaker 01:
That's correct.

[00:18:05] Speaker 00:
And we think that's common in these areas, that a team begins work on a product and then as they're going along, one or more members of the team come to some conception moment where they imagine a future product that resembles the product they're already working on but has

[00:18:19] Speaker 00:
new capabilities that weren't originally conceived.

[00:18:22] Speaker 00:
And that's the story here.

[00:18:23] Speaker 00:
There's got to be a beginning and an end to this process, correct?

[00:18:27] Speaker 00:
That's correct.

[00:18:28] Speaker 00:
So for the invention that Crossroads claimed, the date of conception, I think, is not in dispute.

[00:18:35] Speaker 00:
There's an invention disclosure that sets it out.

[00:18:37] Speaker 00:
And the story ends with constructive reduction of practice at the filing date.

[00:18:45] Speaker 00:
I do want to talk briefly, I know with very little time left, about the Kikuchi reference

[00:18:49] Speaker 00:
We think even if this court sanctions the legal approach that the board took, we think the findings as to Kikuchi are not supported by substantial evidence.

[00:18:59] Speaker 00:
Kikuchi uses an offsetting technique that lacks the granularity necessary for real access control.

[00:19:07] Speaker 00:
And finally, although I'm intruding on Mr. Dragset's domain here a little bit, Mr. Dragset spent a while talking to the court about how

[00:19:19] Speaker 00:
The maps between limitation requires that there be in the brain an identification of the device, and the independent claims really highlight that.

[00:19:27] Speaker 00:
The dependent claims that are cited in our briefing describe a worldwide name, very clearly a name of a device.

[00:19:34] Speaker 00:
They describe a host device ID, a name of a device.

[00:19:37] Speaker 00:
There's no room for tantamount here.

[00:19:39] Speaker 00:
There's no room for, well, it's almost the same.

[00:19:41] Speaker 00:
These are very specific limitations.

[00:19:44] Speaker 00:
And I think you'll find that the record here from our counterparts doesn't develop those dependent claims to the standard necessary to sustain the board's approach.

[00:19:52] Speaker 02:
Okay, thank you.

[00:19:52] Speaker 02:
Thank you.

[00:19:58] Speaker 02:
Mr. Amke.

[00:19:59] Speaker 03:
Thank you, Your Honors.

[00:20:01] Speaker 03:
May it please the Court.

[00:20:03] Speaker 03:
Crussell's appeal fails.

[00:20:06] Speaker 03:
They have not challenged the de facto findings by the board that are dispositive to the issues in this case.

[00:20:12] Speaker 03:
Crossroads did not challenge the fact findings about the fiber channel teachings of the Hewlett Packard journal.

[00:20:19] Speaker 03:
Crossroads did not challenge the board's finding that combined those teachings with the mapping features in the CRD manual.

[00:20:28] Speaker 01:
The board applied those findings throughout the final written decision in a particular... Is this your argument that the so-called mapping limitation

[00:20:37] Speaker 01:
In your view, the board found was disclosed by both the CRD manual and the HP journal?

[00:20:43] Speaker 01:
Just to clarify, yes.

[00:20:44] Speaker 03:
The board determined that the CRD manual disclosed the mapping limitation using the channel number IDs, as you were discussing earlier.

[00:20:51] Speaker 03:
The board also, in response to Crossroads' arguments about the reported shortcomings of the CRD manual's channel numbers, also identified that the CRD, in combination with the teachings of the Hewlett Packard journal, rendered obvious the mapping limitation.

[00:21:06] Speaker ?:
Both.

[00:21:07] Speaker 01:
the board found.

[00:21:09] Speaker 01:
Was that second finding that you believe the board made the finding on, was that a theory you raised in your petition?

[00:21:20] Speaker 03:
What was raised in the petition around the ground has always been the CRD manual in view of the teachings of the Hewlett-Packard.

[00:21:26] Speaker 03:
Right, but you know what I'm talking about.

[00:21:27] Speaker 03:
I do, I do.

[00:21:28] Speaker 03:
And this was a highly contested issue at the oral argument below.

[00:21:33] Speaker 03:
And the board actually addressed these issues

[00:21:35] Speaker 03:
with respect to the teachings of the Hewlett Packard Journal, addressed Crossroads' arguments with respect to the Hewlett Packard Journal in their final decisions.

[00:21:44] Speaker 03:
Crossroads argued about these teachings, argued about the Hewlett Packard Journal.

[00:21:49] Speaker 03:
This wasn't a new thing that was sprung upon them.

[00:21:52] Speaker 03:
It was developed during the record.

[00:21:53] Speaker 03:
They had an opportunity to argue about it.

[00:21:55] Speaker 03:
The board addressed it at the oral argument.

[00:21:57] Speaker 03:
The board addressed it in the final decision and reached the conclusion that the CRD manual

[00:22:02] Speaker 03:
in view of the Hewlett Packard Journal also renders the map limitation obvious.

[00:22:07] Speaker 01:
But where in the petition would I find this argument?

[00:22:11] Speaker 03:
The petition set forth was the use of the CRD mapping using unique identifiers of channel and number IDs.

[00:22:21] Speaker 03:
And it walked through that.

[00:22:23] Speaker 03:
The petition set forth that you would use the teachings of the fiber channel aspects of the Hewlett Packard Journal

[00:22:29] Speaker 03:
to take a multiple series of devices and collapse those devices together onto a single fiber channel loop.

[00:22:36] Speaker 03:
All that was set forth in the petition.

[00:22:39] Speaker 01:
Now, I'm sorry, go ahead.

[00:22:41] Speaker 01:
OK.

[00:22:42] Speaker 01:
So then what you're telling me is if the board did make a second fact finding about the mapping limitation, then that second fact finding did not rest on a theory that was raised in the petition.

[00:22:54] Speaker 03:
I would disagree, Your Honor.

[00:22:57] Speaker 03:
The theory in the petition has always been using the mapping of the CRD plus the fiber channel teachings of the Hewlett Packard Journal.

[00:23:04] Speaker 03:
That was set forth in the petition.

[00:23:06] Speaker 03:
Now, to the extent that additional arguments were raised throughout the proceeding with respect to some of the technical implementation or whether bodily incorporation, additional evidence was developed during the trial.

[00:23:17] Speaker 03:
And many decisions with respect to the proceedings

[00:23:20] Speaker 03:
The Board is not limited to solely the facts that are set forth in the petitions.

[00:23:24] Speaker 03:
Could you just cite me the petition page that's the most relevant so that I can look at it?

[00:23:28] Speaker 03:
Absolutely, Your Honor.

[00:23:29] Speaker 03:
The page that would be most relevant is going to be appendix 158 to 163, discussing at length the teachings of the Cula Packard Journal, particularly the increased addressability

[00:23:47] Speaker 03:
The reason to combine the increased addressability and the use of combining multiple devices onto a single loop.

[00:23:56] Speaker 03:
Is there a particular quote you want to show me?

[00:24:13] Speaker 03:
We'll go to the bottom of page 159 through 160, Your Honor.

[00:24:21] Speaker 03:
The UPEC Journal is teaching that the fiber channel serial transport medium provides solutions to the limitations because it provides bandwidth, it provides increased addressability and simplified cabling.

[00:24:31] Speaker 03:
Again, so we're bringing them all together.

[00:24:34] Speaker 03:
We're also then continuing on that one of the things that you want to do is you want to replace a sequence of five SCSI ports and combine them together into a single fiber channel.

[00:24:43] Speaker 03:
We're solving the slots and wants problem.

[00:24:50] Speaker 03:
We continue on, on page 161, that it would be combinable and predictable to put them together because it was designed to support the Fiber Channel.

[00:24:58] Speaker 03:
It contemplates on middle of 161, Your Honor.

[00:25:02] Speaker 03:
The Hewlett Fiber Channel contemplates replacing the multiple ports with a single port and that they're intended to encapsulate the SCSI commands.

[00:25:13] Speaker 03:
And there's more as well.

[00:25:17] Speaker 03:
The theory has always been, with respect to this, of you have the teachings of the CRD manual, which teaches mapping to particular hosts.

[00:25:26] Speaker 03:
That's the quote from the CRD manual.

[00:25:28] Speaker 03:
Mapping to a particular host.

[00:25:30] Speaker 03:
Now the way it did it is it used a unique identifier called the channel number ID, which was the address for those individual computers.

[00:25:38] Speaker 03:
You have that baseline teaching.

[00:25:40] Speaker 03:
And now what we want to do is we just want to bring those multiple devices together, they're all on separate SCSI channels, onto a single port with respect to fiber channel.

[00:25:54] Speaker 03:
I'd also like to address a few of the arguments made by Crossroads earlier with respect to the CRD manual.

[00:26:02] Speaker 03:
And I want to focus on the map in the brain of the box issue.

[00:26:07] Speaker 03:
Because I think that actually highlights

[00:26:09] Speaker 03:
the distinction with respect to the representation.

[00:26:12] Speaker 03:
Because the map is in the box, in the center box, it has to use representations.

[00:26:17] Speaker 03:
Just like they were saying, it's not a map that's expansive outside the whole scope of the system.

[00:26:22] Speaker 03:
It's a map within the box.

[00:26:24] Speaker 03:
And so you have the computers and you have the storage on the other side.

[00:26:28] Speaker 03:
We can't take the host device over here and stuff it into the box.

[00:26:32] Speaker 03:
The device itself is in the box.

[00:26:34] Speaker 03:
We're talking about computers.

[00:26:35] Speaker 03:
We're talking about using representations.

[00:26:37] Speaker 03:
We're talking about using numbers that are used to communicate and create the path.

[00:26:43] Speaker 03:
Your questions earlier, Your Honor, about the arbitrary loop and the cards are precisely on point.

[00:26:50] Speaker 03:
We have the fiber channel addressing using the ALPA.

[00:26:53] Speaker 03:
We have to go across a wire.

[00:26:54] Speaker 03:
We have to go to a card.

[00:26:57] Speaker 03:
The ALPA is the address that's currently associated with a card.

[00:27:02] Speaker 03:
That card

[00:27:03] Speaker 03:
is currently associated with a computer.

[00:27:06] Speaker 03:
The ALPA is an address in the same way that the channel number is an address with respect to the channel.

[00:27:14] Speaker 01:
The notion of device itself, particularly... I guess Mr. Dragset was saying the channel is a separate unit from the host device itself, whereas the card in the ALPA is part of the device.

[00:27:30] Speaker 03:
the cable that's connecting to the computer is part of the device in the same way that the card is part of the device.

[00:27:37] Speaker 03:
We seem to be arguing then in that scenario about the length of the connection, which certainly doesn't seem to be an issue with respect to the claims.

[00:27:45] Speaker 03:
You have a channel associated with the computer, and you have a card associated with the computer.

[00:27:52] Speaker 03:
You have a channel number associated with the channel.

[00:27:55] Speaker 03:
You have an ALB address associated with the card.

[00:27:59] Speaker 03:
use a channel number to create a path to the computer, use an ALPA number to create a path to the computer.

[00:28:06] Speaker 03:
There's really no distinction in that scenario except the length of the cable, which, again, is not an issue here.

[00:28:15] Speaker 03:
The remaining issue that I wanted to touch on, Your Honor, is, again, the device to device concept raised repeatedly.

[00:28:25] Speaker 03:
The claims aren't requiring

[00:28:28] Speaker 03:
to the device.

[00:28:29] Speaker 03:
All the examples in the specification, whether it's the SCSI ID, the ALPA, or port identifiers, are all talking about things that are not the device itself.

[00:28:40] Speaker 03:
They're all intermediary devices.

[00:28:43] Speaker 03:
The board addressed that in its claim construction, addressed it specifically, finding that mapping to the device itself is not a requirement of the claims.

[00:28:53] Speaker 03:
The claims are not so limited as to be only mapping to the devices.

[00:28:57] Speaker 03:
themselves.

[00:28:59] Speaker 03:
I think the board's construction was correct.

[00:29:02] Speaker 03:
I think the board's fact findings are well supported.

[00:29:06] Speaker 02:
So you say that the board's construction was correct.

[00:29:10] Speaker 02:
Does it really matter?

[00:29:11] Speaker 02:
I mean, even if we go under either crossroads construction or the board's, as far as the CRD reference is concerned, is the board still correct?

[00:29:25] Speaker 02:
I think the board is correct.

[00:29:27] Speaker 03:
Absolutely.

[00:29:28] Speaker 02:
Under either construction, even if we accept Crossroads interpretation?

[00:29:34] Speaker 03:
Yes, Your Honor.

[00:29:35] Speaker 03:
Is the result the same?

[00:29:36] Speaker 03:
Correct.

[00:29:36] Speaker 03:
Because Crossroads has acknowledged that the ALPA identifier meets and satisfies the mapping limitation, even under their narrowed construction.

[00:29:47] Speaker 03:
So the findings by the board with respect to the ALPA, absolutely, even under their narrowed interpretation, rendering the mapping limitation obvious.

[00:29:56] Speaker 03:
Absolutely.

[00:30:00] Speaker 03:
The last point I'd like to address is just the reportedly narrow dependent claims.

[00:30:09] Speaker 03:
And again, with respect to the ALPA findings, unique identifiers were determined to be found within the prior identifiers of host devices.

[00:30:17] Speaker 03:
There's not a lot of distinction going on here with respect to the unique identifiers worldwide name or host identifiers, because again, the ALPA

[00:30:27] Speaker 03:
is satisfying that the AOPA is identifying the host.

[00:30:32] Speaker 03:
And the board determined that the AOPA meets these limitations as well.

[00:30:37] Speaker 02:
What about the host device ID argument?

[00:30:41] Speaker 02:
Yes, Your Honor.

[00:30:42] Speaker 03:
With respect to the host device ID, what's interesting about that one in particular is this dependent claim is based on an independent claim, actually all of them, where there's only claimed a single host.

[00:30:56] Speaker 03:
There's not a requirement of a plurality of hosts.

[00:30:58] Speaker 03:
So all the arguments there about the need to differentiate and distinguish, and that's why you would need to have a host device ID, just simply don't exist in these particular claims.

[00:31:08] Speaker 03:
There's only a single device, which is exactly what the CRD is disclosing.

[00:31:13] Speaker 03:
It's a single device, and it's using an identifier that identifies that device.

[00:31:23] Speaker 02:
Any other questions?

[00:31:25] Speaker 02:
Thank you very much.

[00:31:36] Speaker 06:
Barbara.

[00:31:39] Speaker 06:
Thank you, Your Honors.

[00:31:40] Speaker 06:
Good morning.

[00:31:40] Speaker 06:
May it please the court?

[00:31:41] Speaker 06:
Let me begin with the diligence issue as it relates to the board's finding that there was a failure of diligence in terms of reduction to practice.

[00:31:51] Speaker 06:
There certainly was more than substantial evidence in the record.

[00:31:54] Speaker 06:
that what happened here was that Crossroads set aside its efforts to reduce the invention to practice.

[00:32:02] Speaker 06:
It set that aside and decided instead to work on commercializing a commercial product rather than... That's the Verrazano project?

[00:32:10] Speaker 02:
Is that the Verrazano?

[00:32:11] Speaker 02:
Yes.

[00:32:12] Speaker 02:
But they're arguing that in working on the Verrazano project, in fact, what they were doing is also reducing to practice

[00:32:18] Speaker 02:
the different claims.

[00:32:21] Speaker 06:
And that's not what the board found and the board's finding is based on substantial evidence and here's why.

[00:32:26] Speaker 06:
What Crossroads overlooks and doesn't even mention in its reply brief is that there were working prototypes of the Bridge product.

[00:32:35] Speaker 06:
There were working prototypes during the critical period

[00:32:39] Speaker 06:
Those prototypes, the board found and the evidence shows, were running software.

[00:32:44] Speaker 06:
They were working and being tested even before, actually, this critical period from August to December.

[00:32:51] Speaker 06:
The testimony below was that the access controls was the only missing piece.

[00:32:56] Speaker 06:
That's all that was left to do.

[00:32:58] Speaker 06:
If access controls were run on this Verrazano bridge, you'd have a reduction to practice.

[00:33:04] Speaker 06:
The problem with Crossroads argument is that it ignores that this work could have been done and a reduction to practice could have been achieved in that critical period had only Crossroads tested the access control software on the operating prototype hardware.

[00:33:20] Speaker 06:
And they failed to do that.

[00:33:22] Speaker 06:
And they chose not to do that because they wanted to work on putting together a commercial embodiment of something that did not embody the invention because it didn't have access controls.

[00:33:34] Speaker 06:
In our view, this case is spot on with the neighbor versus creaky case from the CCPA back in 1977.

[00:33:42] Speaker 06:
We discussed that in our brief, and it's essentially on all fours.

[00:33:46] Speaker 06:
What happened there was there was a count, that count related to a semiconductor device.

[00:33:52] Speaker 06:
The testimony below was that the inventor could have built a laboratory scale version of the semiconductor

[00:34:03] Speaker 06:
to do so.

[00:34:04] Speaker 06:
That was available to do, but chose not to.

[00:34:06] Speaker 06:
And what they did instead was they worked on things that would help in the future make the device more useful, more commercially useful.

[00:34:16] Speaker 06:
And the CCPA actually reversed the board's finding that there was diligence and said there's no diligence here.

[00:34:22] Speaker 06:
You could have reduced the invention to practice.

[00:34:25] Speaker 06:
You didn't.

[00:34:25] Speaker 06:
You made an election not to, and so diligence fails.

[00:34:29] Speaker 06:
Let me pick up, though, also on the question that Judge Lynn had asked earlier in the proceedings today, which is that there was an utter failure here to show diligence in November and December of 1997.

[00:34:43] Speaker 06:
Below, Crossroads argued that its diligence could be shown by work on the patent application.

[00:34:50] Speaker 06:
That was the entirety of the evidence they brought forward to the board.

[00:34:55] Speaker 06:
They prepared a chronology.

[00:34:57] Speaker 06:
And they purported to show in the chronology how the work that they were doing showed diligence.

[00:35:03] Speaker 04:
Mr. Courtney, I think argued that there was actually some technical work that was also done.

[00:35:09] Speaker 06:
They argue that now.

[00:35:10] Speaker 06:
They did not argue that below.

[00:35:12] Speaker 06:
And there's no evidence that has been built out that there was any technical work going on.

[00:35:17] Speaker 06:
None.

[00:35:18] Speaker 06:
There are random pieces of notebooks that nobody has ever explained.

[00:35:22] Speaker 06:
And below, nobody said,

[00:35:25] Speaker 04:
This page of this notebook shows X. But those notebooks were introduced into the record, correct?

[00:35:32] Speaker 06:
They are introduced in the record, but significantly what Crossroads told the board about those was when it was trying to put forward its diligence argument, number one, it didn't identify any passages of those notebooks, none, in the chronology that it prepared.

[00:35:50] Speaker 06:
And when it prepared the chronology, what it told the board, and this is an appendix

[00:35:57] Speaker 06:
the board was that the chronology was detailing the Arizona development milestones from the date of conception to the constructive reduction to practice as shown in the foregoing exhibits.

[00:36:09] Speaker 06:
The foregoing exhibits included the notebooks and yet they did not cite a single page from those notebooks from the period of October 19th through December 31st.

[00:36:21] Speaker 06:
So we have not only

[00:36:23] Speaker 06:
The setting aside of the invention, they clearly were not working on reduction of practice when they could have.

[00:36:29] Speaker 06:
But number two, what they argued to the board below, they have completely abandoned that on the appeal, that their prosecution activity is in any way show diligence.

[00:36:39] Speaker 06:
Let me now, if I may, address the argument that was made about Kikuchi and access controls very briefly on that.

[00:36:48] Speaker 06:
There is an unchallenged frank instruction here

[00:36:50] Speaker 06:
that access control, what that means is control the quote limit a host computer's access to a specific subset of storage devices or sections of a single storage device according to a map.

[00:37:06] Speaker 06:
Crossroads concedes that the Kokuchi reference shows the first type of access control where there are limits on a host computer's access to a storage device.

[00:37:16] Speaker 06:
There's no dispute.

[00:37:18] Speaker 06:
That's the end of it.

[00:37:19] Speaker 06:
there's substantial evidence that there are access controls.

[00:37:23] Speaker 06:
Finally, if I may, on the issue of the combination in the Oracle NetApp proceeding, the CRD and Smith combination, the board found that there were two separate ways in which hosts were identified, representations of hosts, and that hosts were identified in that combination.

[00:37:47] Speaker 06:
One way has already been discussed.

[00:37:49] Speaker 06:
the channel ID of the CRD.

[00:37:51] Speaker 06:
The second is essentially the fiber channel unique identifier, which was raised in our petition, which was set forth in Professor Chase's declaration.

[00:38:03] Speaker 06:
All of that laid out that there was a separate way in which hosts could be represented by a fiber channel unique identifier, which would be in a fiber channel packet.

[00:38:13] Speaker 06:
That identifies a device and more than satisfies, for example,

[00:38:17] Speaker 06:
the dependent claim host device ID limitation.

[00:38:22] Speaker 06:
Thank you, Your Honors.

[00:38:28] Speaker 02:
Mr. Dragseth, we'll restore the four minutes.

[00:38:32] Speaker 05:
Let's start with a couple of points on the diligence.

[00:38:36] Speaker 05:
I think the best way to coalesce the law in this area is to ask, were the inventors following a path to get from the base

[00:38:47] Speaker 05:
to something else, or did they go off in other directions?

[00:38:50] Speaker 05:
Here, they were following a path.

[00:38:51] Speaker 05:
They developed a base switch, the basic device.

[00:38:55] Speaker 05:
Yeah, they went and sold it, and then they added on the extra functionality afterward.

[00:39:00] Speaker 05:
That's part of one path.

[00:39:01] Speaker 05:
That distinguishes cases like Cricky, where he had the ability to take his path and make the basic transistor, and he didn't take that path.

[00:39:10] Speaker 05:
He went on a completely different path.

[00:39:12] Speaker 05:
It was not a single path.

[00:39:14] Speaker 05:
And that's what the board got wrong here.

[00:39:16] Speaker 05:
And I think it's the way for this court to best understand all of the cases that have been cited.

[00:39:21] Speaker 05:
At one point, counsel said that there was support for evidence that we have working prototypes.

[00:39:28] Speaker 05:
That's not what the record says.

[00:39:29] Speaker 05:
At A29164, there's a reference to prototypes.

[00:39:34] Speaker 05:
And there was testing occurring.

[00:39:35] Speaker 05:
So the concept that, yeah, we had it done, had the base thing done, and then just kind of waited around and did commercial activity.

[00:39:42] Speaker 05:
and then later picked up the addition of the routing is wrong.

[00:39:47] Speaker 05:
At least the evidence does not support that.

[00:39:49] Speaker 05:
It just says there were prototypes.

[00:39:51] Speaker 05:
It doesn't support this suggestion that they were finished, and then we paused.

[00:39:56] Speaker 05:
And I think Judge Lynn, you picked up on, we do not have the burden of persuasion on this point.

[00:40:00] Speaker 05:
They bear the burden throughout to invalidate the patent.

[00:40:03] Speaker 05:
We produced the evidence, and we did point to various pieces of the evidence.

[00:40:08] Speaker 05:
The key thing is the board didn't look at

[00:40:11] Speaker 05:
the quantum anyway.

[00:40:13] Speaker 05:
And so you can't affirm them on the quantum.

[00:40:15] Speaker 05:
They looked at the fact that they didn't think we were working on the relevant point.

[00:40:20] Speaker 05:
So whatever the evidence is, the board used the wrong legal analysis.

[00:40:25] Speaker 05:
On waiver and really on a lot of the points for deepening claims, here's what the panel really needs to understand.

[00:40:31] Speaker 01:
Can we just go back to diligence?

[00:40:33] Speaker 01:
Sure.

[00:40:33] Speaker 01:
Do you think it's a matter of law if there are overlapping elements with two inventions

[00:40:42] Speaker 01:
working on the shared limitations is always going to be diligence for the other invention?

[00:40:49] Speaker 05:
No, and that's why I focus you on the path.

[00:40:52] Speaker 05:
So if you have things that just happen to be common down here, but one goes in that way, the invention goes in that way and the work went in that way, you don't get all of this, the benefit of all this work that went the other direction.

[00:41:07] Speaker 05:
But here the work was on,

[00:41:09] Speaker 05:
the cards that go into the box and the basic functionality of having a box that can move data.

[00:41:16] Speaker 05:
And then we added this cool extra feature of, well, let's control at the central brain how that data is moved.

[00:41:22] Speaker 05:
So that feeds the central brain again.

[00:41:24] Speaker 05:
And why we're focusing on the central brain is there's a fundamental problem on the dependent claims and on all the mapping limitations.

[00:41:31] Speaker 05:
These claims require that the map be in the central brain

[00:41:36] Speaker 05:
of the device.

[00:41:37] Speaker 05:
That's relevant for the independent claims, but it's centrally relevant for the dependent claims because you don't see in their brief, and you don't hear anything that they said today about how those IDs, the FC addresses, are in the map.

[00:41:52] Speaker 05:
And that's what the claims require.

[00:41:53] Speaker 05:
They said, well, the prior art system, when we make the combination, there's FC addresses out there somewhere.

[00:42:00] Speaker 05:
But never, you can go up and down through their briefs.

[00:42:02] Speaker 05:
You can go up and down through the record.

[00:42:04] Speaker 05:
You can go up and down through the hospital declaration, which we never heard about today.

[00:42:07] Speaker 05:
And that's the only evidence that Cisco has.

[00:42:10] Speaker 05:
Never do they say that those IDs are in the map.

[00:42:15] Speaker 05:
Can you go to the waiver?

[00:42:17] Speaker 05:
Sure.

[00:42:20] Speaker 05:
There's a lot to it.

[00:42:22] Speaker 05:
We spoke a lot about it in our brief.

[00:42:24] Speaker 05:
I think some relevant points.

[00:42:26] Speaker 05:
Number one, what they didn't talk about today, hospitor.

[00:42:30] Speaker 05:
That's their evidence.

[00:42:32] Speaker 05:
It's not in their brief.

[00:42:33] Speaker 05:
They didn't talk about it today.

[00:42:34] Speaker 05:
They talked about their petition.

[00:42:38] Speaker 05:
The pages they found in their petition, they found eight pages in their petition.

[00:42:41] Speaker 05:
You know what two pages weren't there?

[00:42:43] Speaker 05:
The two pages that the board cited when the board introduced this place where the board supposedly found the alternative argument.

[00:42:50] Speaker 05:
Now, what did the board actually do in this paragraph that we're fighting over?

[00:42:55] Speaker 05:
If you look at it, there's three clauses in that sentence.

[00:42:58] Speaker 05:
And the board says,

[00:43:00] Speaker 05:
Basically, you're going to use the map from the CRD 5500, and then you're swapping these cards, and they'll communicate with their loops using the fiber channel IDs.

[00:43:15] Speaker 05:
There's nothing about the fiber channel IDs going into the map, and that's critical for the waiver, and it's critical for all the other issues here, because the key is to get there, especially for the dependent claims, they have to get those fiber channel IDs

[00:43:30] Speaker 05:
into the map.

[00:43:31] Speaker 05:
And our claims say that the map's not out on the network, the map's not on the expansion cards, the map is in what's in some claims we call the supervisor unit, in other claims it's the access control unit I think.

[00:43:45] Speaker 05:
But that is separate from those cards and separate from the network.

[00:43:49] Speaker 05:
Those unique identifiers have to get into the map and never did they say that they get into the map.

[00:43:54] Speaker 05:
That is what's the critical problem with their alternative theory

[00:43:58] Speaker 05:
I think it's the problem they saw in the approach the board took, because the board didn't make that jump.

[00:44:04] Speaker 05:
And there's just no record to make that jump, especially with Mr. Hospitor, who never even said anything about the HP Journal with respect to that.

[00:44:13] Speaker 02:
We thank you very much.