[00:00:08] Speaker 02: Okay. [00:00:09] Speaker 02: The first argued case this morning is number 16, 1287, the Nova Technology Corporation against Seagate Technology. [00:00:18] Speaker 02: Mr. Wolff. [00:00:19] Speaker 00: Good morning, Your Honors. [00:00:20] Speaker 00: May it please the Court? [00:00:22] Speaker 00: The Board's determination in this matter is erroneous for at least two reasons. [00:00:28] Speaker 00: One, the combination of Nolan, the SCSI or SCSI-2 standard, [00:00:34] Speaker 00: the CD wire and the read six write six commands do not disclose the claimed data stream interceptor of the patent. [00:00:45] Speaker 00: To the combination, to the report, excuse me, the board disregarded the secondary considerations of non-obviousness by applying the wrong legal standard. [00:01:00] Speaker 00: As to the first point, [00:01:01] Speaker 00: The Nolan combination operates in a fundamentally different way from the patent. [00:01:08] Speaker 00: The patent is set up with a data stream interceptor that has to do two things. [00:01:15] Speaker 00: One, according to Seagate's proposed construction, which was adopted by the board [00:01:21] Speaker 00: and is not in dispute in this matter, the data stream interceptor has to distinguish data signals, excuse me, command signals in the data stream from data signals. [00:01:34] Speaker 00: And the Nolan combination does not do that. [00:01:38] Speaker 00: Instead, it sets up a phase in which commands or data may be sent. [00:01:45] Speaker 00: And that does not distinguish the signals in the data stream. [00:01:51] Speaker 04: Well, why doesn't that, at least in one reasonable way of speaking, distinguish the command signals from the data signals by knowing exactly, in a time slot sort of way, knowing exactly which it is that is coming at a particular time? [00:02:12] Speaker 00: It doesn't do that in the data stream. [00:02:16] Speaker 00: The distinguishing is done by setting up a transfer in advance. [00:02:21] Speaker 00: So even Dr. Long admits that, that the system in Nolan sets the phase and then receives the information. [00:02:30] Speaker 00: So for example, in the patent, consider this example. [00:02:37] Speaker 00: If we have cars in a stream of traffic, [00:02:41] Speaker 00: I have a data stream interceptor under the patent that examines the cars, determines whether there are drunk drivers or sober drivers in them, then informs the main controller of that information. [00:02:59] Speaker 00: The main controller then uses that input to decide what to do with the cars. [00:03:04] Speaker 00: In the Nolan situation, [00:03:09] Speaker 00: The SCSI interface 15 asks for only sober drivers, only sober drivers are sent, and those drivers, those cars with those drivers in them are sent to the main controller. [00:03:21] Speaker 00: There is no distinguishing of one or the other in the data stream. [00:03:27] Speaker 00: Seagate itself explains this the same way. [00:03:31] Speaker 04: They say, if I want T, I get T. Right, so your view depends to continue your [00:03:38] Speaker 04: highway analogy on saying that, for example, you wouldn't be distinguishing the inbound from the outbound traffic on a particular road by saying from 7 a.m. [00:03:56] Speaker 04: to 9 a.m. [00:03:58] Speaker 04: only inbound, the rest of the time only outbound. [00:04:02] Speaker 00: That may be distinguishing, but it's not in the stream. [00:04:05] Speaker 00: It's done in advance. [00:04:06] Speaker 00: You're setting up the conditions so that it happens. [00:04:07] Speaker 04: Well, you're distinguishing the cars in that stream. [00:04:10] Speaker 00: No, you're not. [00:04:11] Speaker 04: You're not distinguishing among the cars at any given time, but you're distinguishing with respect to the characteristic you're trying to identify. [00:04:21] Speaker 04: You know. [00:04:24] Speaker 04: what those cars are doing. [00:04:26] Speaker 00: You only know if someone else tells you that they are. [00:04:29] Speaker 00: You can see in the Nolan example, it's like a clock. [00:04:32] Speaker 00: If it's broken, it may be right twice a day, but you wouldn't know that unless you had another device, a clock, to tell you that that is so. [00:04:41] Speaker 00: There's nothing in the Nolan device that tells you what's happening. [00:04:47] Speaker 00: The main controller does everything in the Nolan device. [00:04:51] Speaker 00: If you look at figure two, [00:04:53] Speaker 00: And the explanation in Appendix 581, it explains how the microprocessor makes all the decisions. [00:04:59] Speaker 00: It decides based on all that there are two decisions that it makes when the incoming data comes in. [00:05:07] Speaker 00: It decides whether there's data. [00:05:10] Speaker 00: There's no distinguishing of one from the other. [00:05:12] Speaker 00: It decides whether there's data, and then it decides to encrypt, yes or no. [00:05:16] Speaker 00: Those two steps are in Figure 2, and those two steps [00:05:20] Speaker 00: are described as being done by the microprocessor, not by the SCSI interface 15, which Seagate and the board identified as the putative data stream interceptor. [00:05:34] Speaker 03: But doesn't the SCSI interface direct the command signals to the microprocessor and the data to the memory buffer? [00:05:46] Speaker 03: The host... So in that sense, [00:05:50] Speaker 03: It is doing some kind of distinguishing. [00:05:52] Speaker 03: It's sending one set of signals one place, another set of signals another place. [00:05:58] Speaker 00: Well, so it does so, but based on a setup where, let's keep in mind the CD wire does not carry any data. [00:06:07] Speaker 00: It just sets the phase, and then pursuant to that set phase, something comes down the pipe. [00:06:12] Speaker 00: In the situation of read six, write six, which Seagate identifies, that happens to be only data or only commands. [00:06:19] Speaker 00: But that's not making or distinguishing in the data stream. [00:06:25] Speaker 00: Seagate and the board keep writing out in the data stream requirement, which is the instruction that Seagate itself advanced and the board adopted without controversy. [00:06:41] Speaker 00: The host computer is actually the device [00:06:48] Speaker 00: the host computer originates the commands, and then the SCSI interface interprets them and sets up these phases. [00:06:54] Speaker 00: But again, note when the CD wire sets, there is no data flowing yet, it just sets the phase, and then pursuant to that phase, the data comes, it's one or the other, only in the Read6Write6 situation. [00:07:08] Speaker 00: And if you think about it, the invention is about [00:07:12] Speaker 00: doing data encryption on the fly. [00:07:14] Speaker 00: It's reading the stream, distinguishing commands in the data stream from data signals, and then deciding what to do with them by informing the main controllers, giving it input. [00:07:27] Speaker 00: And input is the second thing that the data stream interceptor must do, which is not done in the NOLAN device under the proper construction. [00:07:38] Speaker 00: Claim 9 sets the context for that input. [00:07:41] Speaker 00: the data stream interceptor distinguishes commands from data and then the main controller uses the input from that distinguishing operation to determine whether to encrypt the incoming signal, incoming data. [00:07:57] Speaker 02: Isn't that part of the problem? [00:08:00] Speaker 02: Not that the transparent encryption and not that there hasn't been a contribution which [00:08:07] Speaker 02: whereby this patent overall distinguishes from Nolan, perhaps other prior art, but a claim nine is so broad that it doesn't distinguish from Nolan. [00:08:19] Speaker 02: I gather that that was an issue that the board considered and relied on in their invalidation. [00:08:27] Speaker 00: It did, but it did so by ignoring its own construction of in the data stream. [00:08:32] Speaker 00: The construction it gave was so, it ignored the, [00:08:37] Speaker 00: in the data stream requirement by allowing something where, again, Seagate says, if I want tea, I get tea. [00:08:44] Speaker 00: If I want coffee, I get coffee. [00:08:47] Speaker 00: And asking for something is not the same thing as distinguishing a stream of fluid where you have to tell one from the other. [00:08:55] Speaker 00: As to input, the claim uses different terms. [00:09:00] Speaker 00: It talks about input, and that input is used to inform the main controller [00:09:05] Speaker 00: to make a decision about the incoming data. [00:09:09] Speaker 03: You want us to read the word input as necessarily being the result of the distinguishing done by the interceptor. [00:09:19] Speaker 00: I think that's a fair way to read the map. [00:09:21] Speaker 03: And so I guess the question is, the claim isn't written that way, though. [00:09:26] Speaker 03: We have this rather broad and just colloquially speaking, [00:09:33] Speaker 03: vague term called input. [00:09:36] Speaker 03: And so it doesn't even say said input to give us perhaps a clue. [00:09:42] Speaker 03: And there would be problems there with that kind of writing as well. [00:09:45] Speaker 03: But I guess it's not clear to me why input necessarily has to mean what you say it means. [00:09:55] Speaker 00: In context, that's the only input that's even discussed in the claim. [00:10:00] Speaker 00: And the main controller uses that input to make a decision about what to do about the incoming data. [00:10:06] Speaker 00: If you read input as being coextensive with incoming data, then the main controller would not have any input upon which to make a decision. [00:10:17] Speaker 00: It would be doing the determination that the patent claim says is done instead by the DSI, or Data Stream Interceptor. [00:10:28] Speaker 00: Having the main controller do the determination or distinguishing and the determination in one step is not what is claimed. [00:10:37] Speaker 00: What is claimed is the breakup of those two steps. [00:10:42] Speaker 00: Distinguishing commands from data and then providing that input to the main controller which makes the determination. [00:10:51] Speaker 00: Reading the two as coextensive would read out the requirement of the [00:10:56] Speaker 00: the data stream interceptor to do anything and provide anything. [00:11:00] Speaker 00: And that's the same context in which I ask for things in the, again, colloquial sense. [00:11:07] Speaker 00: If I ask my associate for input on a case, I don't expect her to give me just the case. [00:11:14] Speaker 00: I'm asking her for her input. [00:11:16] Speaker 00: That is something about that case. [00:11:18] Speaker 00: Is it affirmed? [00:11:19] Speaker 00: Is it overruled? [00:11:22] Speaker 00: Is there something about that case that makes it pertinent? [00:11:25] Speaker 00: to our matter. [00:11:26] Speaker 00: I don't expect her to just give me the case. [00:11:28] Speaker 00: And that's the way Seagate and the board read input. [00:11:31] Speaker 00: It's too broad. [00:11:32] Speaker 00: The standard is broadest reasonable construction read from the context of the patent claims, not just in the abstract where an input could do all those. [00:11:44] Speaker 00: It could be just as the signals themselves. [00:11:45] Speaker 02: But the specification is very broad, it seems to me. [00:11:49] Speaker 02: And it doesn't seem to draw the distinctions that you're telling us distinguish knowing. [00:11:56] Speaker 00: Well, the specification does say so if you read it with the claims, because the claims talk about one and the other, and if you read incoming data coextensive with input, then there would be no need for the data stream interceptor to do anything. [00:12:14] Speaker 00: The main controller would do everything, and that would read out improperly a limitation of the pattern. [00:12:22] Speaker 02: Let's hear from the other side and we'll save your rebuttal. [00:12:25] Speaker 02: Is there anything else you need to tell us at this stage? [00:12:29] Speaker 00: At this stage, I want to talk about the improper standard that the board used for nexus. [00:12:38] Speaker 02: You're talking about the nexus of the secondary consideration? [00:12:41] Speaker 00: Yes. [00:12:42] Speaker 00: There should have been a presumption of nexus here because all the secondary considerations were about the product. [00:12:50] Speaker 00: of the X-Wall product and according to Dr. Conti's unrebutted declaration, that product, the X-Wall, was the invention described and claimed in the patent. [00:13:01] Speaker 00: So under those conditions, under the WBIP case, we should have been entitled to a presumption of nexus. [00:13:08] Speaker 00: Instead, the board looked for whether or not those references of the evidence of secondary considerations [00:13:18] Speaker 00: actually recited an element of the patent. [00:13:21] Speaker 00: And that's the improper standard. [00:13:23] Speaker 00: It should have been flipped the other way around. [00:13:24] Speaker 00: We should have had the presumption of nexus. [00:13:28] Speaker 03: Instead, the board... Your claim, though, says, you know, encrypting at least one data stream, not encrypting all data streams, right? [00:13:38] Speaker 03: Which is what full data encryption, as I understand it, really is. [00:13:43] Speaker 00: Right. [00:13:43] Speaker 00: But if you read one data stream as being just one command, which is the way Seagate and the board want to read it, then it makes no sense to distinguish commands in the data stream from data signals. [00:13:57] Speaker 00: One data stream can't be just one or the other. [00:14:00] Speaker 00: It has to be both, which we're reading. [00:14:03] Speaker 00: And I think I want to save my rebuttal time. [00:14:04] Speaker 00: OK. [00:14:05] Speaker 02: We will save your full rebuttal, and we'll see what Mr. Gross has to tell us. [00:14:18] Speaker 01: Thank you, Your Honor, and may it please the court. [00:14:20] Speaker 01: I'd like to address first the issue of distinguished. [00:14:23] Speaker 01: And I want to start with the general point that the fact that we're using representative claim nine has not been challenged. [00:14:29] Speaker 01: That is the claim that we're assessing. [00:14:31] Speaker 01: And that claim is extraordinarily broad. [00:14:34] Speaker 01: And when we look at the specification, the specification itself is also extraordinarily broad. [00:14:39] Speaker 01: And what we believe the patent owner is attempting to do is to try to redraft the claim language by putting in words like, [00:14:47] Speaker 01: distinguishing input and the like, and we just don't think that's how the claim reads, and I want to go through sort of step by step how this worked with the board. [00:14:57] Speaker 01: First of all, the board had a construction of data stream interceptor that is not challenged on appeal, and it's extraordinarily broad. [00:15:05] Speaker 01: One or more components adapted to intercept at least one data stream and distinguish the command or control signals in the data stream from the data signals. [00:15:13] Speaker 01: That's it. [00:15:14] Speaker 01: That's not challenged, which means if [00:15:17] Speaker 01: SCSI-2 in combination with Nolan, we can find at least one data stream where SCSI interface 15 is distinguishing command and control signals from data signals. [00:15:29] Speaker 01: It falls within the claim line. [00:15:31] Speaker 04: In the data stream. [00:15:32] Speaker 04: Their whole argument is about that. [00:15:36] Speaker 01: Yes. [00:15:37] Speaker 01: So does the distinguishing have to be done in the data stream? [00:15:41] Speaker 01: Well, there is a data stream, and then there has to be distinguishing. [00:15:46] Speaker 01: There doesn't have to be distinguishing occurring literally like timing evaluating currently while there's a data stream happening. [00:15:53] Speaker 01: But you are distinguishing a data stream. [00:15:55] Speaker 01: And so if we look at appendix 659, this is where the SCSI 2 standard uses the verb distinguish to say what is occurring in SCSI 2. [00:16:08] Speaker 01: It literally uses the word distinguish, which is a word found in the claim. [00:16:12] Speaker 01: And it says the CDIO and message signals are used. [00:16:17] Speaker 01: I'm sorry, your honor. [00:16:18] Speaker 01: It is Appendix 659. [00:16:19] Speaker 01: 659. [00:16:20] Speaker 01: It's, I believe, page 42 of the SCSI 2 standard. [00:16:30] Speaker 04: So we're on that page. [00:16:32] Speaker 01: You're in the middle. [00:16:37] Speaker 04: I see. [00:16:38] Speaker 01: I'm sorry. [00:16:39] Speaker 04: The first margin squared paragraph. [00:16:41] Speaker 01: Yes. [00:16:46] Speaker 01: Two paragraphs below the information transfer phase is subheading. [00:16:50] Speaker 01: And this is SCSI 2 describing how it distinguishes. [00:16:54] Speaker 01: It says the CDIO and message signals are used to distinguish between the different information transfer phases. [00:17:01] Speaker 01: Now remember that [00:17:03] Speaker 01: The claim says at least one data stream interceptor that distinguishes between command and control and data signal transfers. [00:17:11] Speaker 01: SCSI 2 is saying right here. [00:17:12] Speaker 04: Right, but just to focus on this, you understand perfectly well that their argument is not an argument just from the claim language. [00:17:21] Speaker 04: Their argument is entirely based on the claim construction. [00:17:27] Speaker 04: The claim construction has the phrase distinguish in the data stream. [00:17:31] Speaker 04: SCSI 2 doesn't. [00:17:33] Speaker 04: So talk about why it is that the prior art shows that what the prior art does is distinguishing in the data stream. [00:17:42] Speaker 01: Yes, Your Honor. [00:17:43] Speaker 01: When SCSI-2 is saying that the CDIO message signals are used to distinguish between different information transfer phases, that absolutely is talking about a data stream. [00:17:53] Speaker 01: The information transfer phases are different phases that involve data passing from the initiator to the [00:18:01] Speaker 01: target. [00:18:02] Speaker 01: That's exactly what's happening. [00:18:04] Speaker 01: SCSI is about the transfer of data, a data stream. [00:18:07] Speaker 04: What evidence, both sides, I guess, expert, I'm asking about expert testimony, spoke to the particular language distinguish in, distinguish in? [00:18:21] Speaker 01: Well, I don't think there's a lot of discussion about distinguish in, Your Honor, but I will say this. [00:18:26] Speaker 01: If you're distinguishing in the data stream, it doesn't matter if you distinguish in advance or if you distinguish currently as it's occurring. [00:18:34] Speaker 01: And we don't believe in any way what this construction meant when it uses the phrase in the data stream is in advance. [00:18:40] Speaker 01: If it was going to be in advance, you would need to say that. [00:18:43] Speaker 01: You can distinguish something in a stream of data in advance or while it's occurring. [00:18:49] Speaker 01: And just keep repeating, but it has to be a data stream. [00:18:51] Speaker 04: What if any debate was there between the parties [00:18:56] Speaker 04: in the process leading to the board's adoption of that claim construction. [00:19:01] Speaker 04: Was that initially at institution? [00:19:04] Speaker 01: And then just retained at the review? [00:19:08] Speaker 01: There was not a raging debate. [00:19:09] Speaker 01: Basically what happened was our expert in paragraph 105 gave the examples of the read and write commands. [00:19:16] Speaker 01: Their expert declaration did not discuss the read or write commands. [00:19:20] Speaker 01: Then in their opposition brief, they mentioned inquiry and copy commands. [00:19:25] Speaker 01: And then our reply, we put in our footnote in the reply, our petition in paragraph 105 talks about read and write. [00:19:32] Speaker 01: And so they were not paying attention to the read-write command, which is what the focus of our petition was. [00:19:37] Speaker 01: And then at the hearing, we discussed whether the read-write command distinguishes in the data stream. [00:19:44] Speaker 01: And our position was it does. [00:19:45] Speaker 01: You don't need to do it in advance. [00:19:47] Speaker 01: If you're distinguishing, you're distinguishing. [00:19:49] Speaker 01: You don't add the phrase in advance. [00:19:51] Speaker 01: And they talked about the copy in the inquiry command. [00:19:54] Speaker 01: which are different commands, not the same data stream. [00:19:57] Speaker 01: So your honor, if, to go back to any example you want, whether it's traffic or whether it's anything else, if I'm distinguishing in the stream of information, in the stream of cars, I'm distinguishing. [00:20:11] Speaker 01: I can distinguish in advance, I can distinguish currently, I can evaluate and distinguish, I can give directions, but here the way the distinguishing occurs is SCSI interface 15 [00:20:21] Speaker 01: controls and directs the information transfer phases. [00:20:25] Speaker 01: And in a read6 or write6 operation, the SCSI interface 15 is the interface that says, all right, let's start with a command. [00:20:34] Speaker 01: And then it gets a command that has only command information. [00:20:37] Speaker 01: And then it says, all right, now you can give me the data in or the data out, depending on whether it's read or write. [00:20:42] Speaker 01: And then it gets the read or write information that's, again, separated. [00:20:46] Speaker 01: So the SCSI interface 15 is distinguishing between these two information transfer phases. [00:20:51] Speaker 01: It's directing and controlling them. [00:20:53] Speaker 01: And the result of its directing and controlling is to distinguish between command information and data information or user data. [00:21:00] Speaker 01: That's exactly what SCSI does. [00:21:02] Speaker 01: Now, the fact that SCSI does it, you hear the phrase, in advance, simply means it's distinguishing in advance. [00:21:10] Speaker 01: And you can distinguish in a data stream in advance or you can distinguish it currently. [00:21:14] Speaker 01: And so we don't believe [00:21:17] Speaker 01: that seeing the phrase in the data stream in any way suggests that we're adding a new limitation, which is it cannot occur in advance. [00:21:25] Speaker 01: So even if you're controlling it, you're directing it, and you're successful, and you know that you're successful, that's somehow a problem. [00:21:33] Speaker 01: We don't think it is. [00:21:34] Speaker 01: Then SCSI interface 15 sends the result, after it distinguishes, sends the command to the microprocessor 17. [00:21:44] Speaker 01: And I just want to make this [00:21:45] Speaker 01: This is a little bit of a nuance point, but switching for a second to input. [00:21:48] Speaker 01: The host computer obviously has a command. [00:21:53] Speaker 01: But SCSI interface 15 is playing a very important traffic role. [00:21:56] Speaker 01: SCSI interface 15 is controlling and directing the information transfer phases. [00:22:00] Speaker 01: So what the SCSI interface 15 says is, all right, now give me the command. [00:22:04] Speaker 01: It then sends that command to microprocessor 15. [00:22:07] Speaker 01: And in Nolan, in figure two, there's a flow chart. [00:22:10] Speaker 01: It actually says input SCSI command. [00:22:14] Speaker 01: If you didn't have SCSI interface 15, it wouldn't work. [00:22:17] Speaker 01: The host computer couldn't just send stuff directly to the main controller. [00:22:22] Speaker 01: SCSI interface 15 is playing a very important role of distinguishing the information transfer phases. [00:22:27] Speaker 01: And in a read6 and a write6 operation, what SCSI interface 15 is distinguishing is command and control information from user data. [00:22:35] Speaker 01: It then sends up to the microprocessor input SCSI command. [00:22:40] Speaker 01: That's literally the first thing that happens. [00:22:42] Speaker 01: then as you go down, it makes its encryption decision. [00:22:46] Speaker 01: So we think input is simply input. [00:22:48] Speaker 01: It's not distinguishing input. [00:22:51] Speaker 01: And by the way, in the actual specification, there's no discussion of distinguishing input, or we want to make sure everyone understands there's a very special definition of input. [00:22:58] Speaker 01: There's nothing like that at all. [00:23:00] Speaker 01: The specification is very broad. [00:23:02] Speaker 01: So if all that's required is input, and if in Nolan, [00:23:06] Speaker 01: Figure two, it says input SCSI command, and if the SCSI interface 15 is performing this vital function in a read6 and a write6 operation of distinguishing a command from user data, and then it sends that command to microprocessor 17, it is giving input. [00:23:22] Speaker 01: A main controller is receiving input. [00:23:24] Speaker 01: And by the way, it says receiving input, and then it says determining whether the incoming data would be encrypted. [00:23:31] Speaker 01: In no way are we suggesting that the input is literally the same as the incoming data. [00:23:35] Speaker 01: In fact, that wouldn't even make sense. [00:23:38] Speaker 01: The input is the input SCSI command. [00:23:40] Speaker 01: That's the SCSI interface 15 sends the input SCSI command. [00:23:44] Speaker 01: Whether the incoming data will be encrypted would include commands or user data. [00:23:49] Speaker 01: So they're not coextensive. [00:23:51] Speaker 01: They are separate terms. [00:23:52] Speaker 01: So we're not somehow saying that the word input is superfluous. [00:23:56] Speaker 01: It has no meaning. [00:23:57] Speaker 01: The word input and the phrase incoming data are different phrases, and we've never suggested otherwise. [00:24:02] Speaker 01: Turning briefly to [00:24:05] Speaker 01: secondary factors. [00:24:08] Speaker 01: On the issue of secondary factors, what the board did is not apply the wrong standard. [00:24:14] Speaker 01: If we go to the Appendix 43 that has the board's decision, the board went out of its way to show to this court that it was going to analyze the facts closely and make its own determination. [00:24:26] Speaker 01: It said things like, secondary considerations when present must always be considered. [00:24:32] Speaker 04: Right, so the board clearly gave a [00:24:34] Speaker 04: quite full discussion of secondary considerations, much fuller than at least in my experience it typically does. [00:24:42] Speaker 04: Nevertheless, why is this not a case for a presumption of what we call nexus? [00:24:48] Speaker 01: Well, Your Honor, the issue of presumption is highly fact dependent. [00:24:54] Speaker 01: In other words, it's not the case that if a patent owner makes a presumption argument, the board has to say, you've shown a presumption. [00:25:01] Speaker 01: So because the issue itself of presumption is fact dependent, and I would say that we could talk about as a legal issue, I believe I'm correctly stating the law that the issue of presumption is fact dependent, that there's no suggestion that you don't need to make a factual record that creates a presumption. [00:25:17] Speaker 02: Let's say that there is weight to their saying that here there was a patent, it was widely licensed, it was widely used, that in fact there is a [00:25:29] Speaker 02: presumption that there was a relationship between the invention and the use. [00:25:36] Speaker 02: Where does that leave? [00:25:40] Speaker 02: And therefore that the secondary considerations are a factor. [00:25:44] Speaker 02: Now we know that the use of secondary considerations as they were born, it's part of the entirety of the discussion. [00:25:56] Speaker 02: Is your sense that [00:25:58] Speaker 02: How the board treated secondary considerations would, if they were incorrect, would change the result? [00:26:06] Speaker 01: We don't believe so, Your Honor. [00:26:08] Speaker 01: We believe that at the end of the board's extensive discussion, the board said it outweighs the evidence of secondary consideration of non-obviousness. [00:26:15] Speaker 01: We believe it was trying to balance the secondary factors evidenced. [00:26:20] Speaker 01: Back to the Judge Toronto and Judge Newman's question about how does this all work in this context with presumption, [00:26:25] Speaker 01: I want to point out that the WBIP case, which they cited at 2016 Westlaw 3902668, the WBIP case says, questions of nexus are highly fact-dependent, and as such are not resolved by appellate-created categorical rules. [00:26:47] Speaker 01: And it goes on to say that nexus is fact-dependent. [00:26:49] Speaker 04: If you can just get back to the question I asked, why on the facts of this case is there not a presumption? [00:26:55] Speaker 01: Your Honor, in any case, the patent owner really has two roads, we think. [00:27:00] Speaker 01: You can go down. [00:27:01] Speaker 01: One road is to high level it and not show the presumption, not try to get the presumption. [00:27:05] Speaker 01: Another one is to try to do the work required to show that the product that the patent owner sells is part of the claim subject matter, that the product that someone was using was part of the claim subject matter. [00:27:16] Speaker 01: Here, what happened is they had an expert who had a conclusory few paragraphs and an affidavit. [00:27:21] Speaker 01: And so what happened is they didn't get into that uncomfortable position where they have to explain how their product falls within the claim subject matter or how another product falls within the claim subject matter. [00:27:31] Speaker 01: When you go down the road of trying to explain to get that presumption. [00:27:35] Speaker 01: That's the road I'd like to be on. [00:27:36] Speaker 04: And when you just give me, finally, give me some particular reason why the presumption doesn't apply. [00:27:42] Speaker 01: Your Honor, their expert declaration is conclusory. [00:27:46] Speaker 01: That's why the presumption does not apply. [00:27:48] Speaker 01: their expert in no way talks about how the product falls under the claim of subject matter. [00:27:52] Speaker 01: It's a high level, a few sentences here and there. [00:27:54] Speaker 04: So you still don't want to actually give me a fact about this case that's different from a procedural fact to explain why the presumption doesn't apply? [00:28:05] Speaker 01: What we're saying, Your Honor, is the unfortunate position I'm in is this is an abject failure of proof. [00:28:12] Speaker 01: So we're not in the IPR proceeding [00:28:15] Speaker 01: examining their actual product and the information around their product and showing this flaw or hole. [00:28:22] Speaker 01: Instead what we're saying is, if instead of doing an analysis that shows that your product is part of the claim subject matter, you just have some high level paragraphs. [00:28:30] Speaker 01: A board has discretion to say that that's not enough to trigger the presumption. [00:28:36] Speaker 01: So we didn't do discovery in this case to show that their own product has this problem or that problem. [00:28:42] Speaker 01: What we said was it's an abject failure proof. [00:28:44] Speaker 01: Similarly. [00:28:45] Speaker 03: So just for me to clarify, you're saying that the other side didn't have an expert walk through a schematic diagram of its device and point through how all the different pieces of that schematic are found in the claim, and then how those pieces in the schematic perform the functions that are recited for those corresponding components in the claim. [00:29:12] Speaker 01: Yeah, the expert kind of tried to meet us halfway by a high level, like five or 10 paragraphs of high level discussion. [00:29:18] Speaker 01: Nothing like a claim chart, nothing that really got into detail, which meant they avoided these situations of, all right, how are you going to apply transparently to your product? [00:29:26] Speaker 01: How are you going to apply input to your product? [00:29:28] Speaker 01: How are you going to apply distinguishing to your product? [00:29:30] Speaker 01: They avoided all that by having some high level discussion. [00:29:33] Speaker 01: And so my point, Judge Ferrando, is we didn't engage in discovery to get the details. [00:29:37] Speaker 04: Can I just ask about something that Judge Chen mentioned when you're [00:29:42] Speaker 04: colleague on the other side was up. [00:29:45] Speaker 04: Their product encrypts in everything. [00:29:50] Speaker 04: Is that right? [00:29:51] Speaker 01: Well, that's what they say it does, yes. [00:29:53] Speaker 01: So sure. [00:29:54] Speaker 04: So if they say it does, so maybe that was the nifty thing that made their product commercially successful, praiseworthy, et cetera. [00:30:03] Speaker 04: The claims don't require that. [00:30:06] Speaker 01: To follow up on Judge Chen's point and your honor's question, [00:30:10] Speaker 01: The broad nature of the claim creates a huge problem for them on secondary considerations, because the broad nature says, if you just have one, you just have one. [00:30:19] Speaker 01: You fall within this claim. [00:30:21] Speaker 01: What they're announcing to the world is, hey, we do full disconception all the time. [00:30:26] Speaker 01: That's very different from, hey, we do it at least once. [00:30:30] Speaker 01: So that actually is way outside of the claim subject matter. [00:30:34] Speaker 01: That's discussing a product that does things all the time. [00:30:37] Speaker 01: So from a secondary consideration standpoint, [00:30:40] Speaker 01: It's the board has discretion to say you haven't done it enough. [00:30:44] Speaker 01: You haven't shown the claim subject matter. [00:30:45] Speaker 01: And they in no way have said that the claimed subject matter, what actually the claim shows, is in any way driving their commercial considerations. [00:30:53] Speaker 01: The board went in excruciating detail. [00:30:56] Speaker 01: And your honor, I will confess, on the presumption issue, it's an abject failure of proof argument that we're making. [00:31:02] Speaker 01: And the board has the discretion to say you haven't met the standard to create the presumption. [00:31:07] Speaker 01: If you have an expert that has some conclusory paragraphs, that's not enough. [00:31:11] Speaker 01: Oh my goodness. [00:31:12] Speaker 01: I apologize. [00:31:13] Speaker 01: My time is going in the wrong direction. [00:31:15] Speaker 02: Well, if it is, let's be sure we've covered the issues. [00:31:20] Speaker 01: Thank you, Your Honor. [00:31:21] Speaker 02: OK. [00:31:22] Speaker 02: Thank you, Mr. Karras. [00:31:29] Speaker 00: Your Honor, just picking up on that last point, the board did not address [00:31:35] Speaker 00: the secondary considerations as a failure of proof. [00:31:38] Speaker 00: It said instead that there's no nexus because the secondary consideration evidence did not recite particular claim elements. [00:31:47] Speaker 00: And there was a declaration from Innova's expert that laid out the practice of the 995 patent by the products that received the industry praise. [00:32:01] Speaker 00: But in fact, the patent contemplates the invention could be an ASIC. [00:32:06] Speaker 00: Innova made encryption ASICs. [00:32:08] Speaker 04: Those ASICs... Can you address just maybe once again the point that Judge Chen first made. [00:32:17] Speaker 04: It hasn't been enough and shouldn't be enough to show that a product is highly successful and praised and that the product is covered by the patent. [00:32:28] Speaker 04: That can't be, that isn't in fact what [00:32:31] Speaker 04: it means to say that the product is the invention. [00:32:36] Speaker 04: Why is this not an example of that if indeed the claims would cover any product that did what this says it does on any data stream? [00:32:47] Speaker 04: And this product does this on all data streams and therefore makes it an extremely attractive thing. [00:32:55] Speaker 00: I don't know that I'm following your hypothetical, Your Honor, but this is a situation where we have the unrebutted declaration of our expert walking through the claims and saying how this product practices that invention. [00:33:14] Speaker 00: Right. [00:33:14] Speaker 04: So let me try to say it in a different way. [00:33:17] Speaker 04: The standard for a presumption of nexus [00:33:23] Speaker 04: I think we have phrased as something like a product is the invention. [00:33:29] Speaker 04: Is means more than practices. [00:33:31] Speaker 04: Has to mean more than that, because. [00:33:33] Speaker 00: Described and claimed. [00:33:35] Speaker 00: What's that? [00:33:36] Speaker 00: This test is, is it the invention that is described and claimed in the patent? [00:33:42] Speaker 00: Is it, right. [00:33:43] Speaker 04: But is means more than practice. [00:33:45] Speaker 04: Otherwise, an electronic device that contains [00:33:51] Speaker 04: 5,000 different features, one of which is covered by the patent, would enjoy a presumption of nexus. [00:33:59] Speaker 04: So why aren't the 4,999 other features of this, namely it does this all of the time, not just once, mean that the standard for a presumption is inapplicable? [00:34:15] Speaker 00: Well, it's not inapplicable in this situation because this is a product that actually only does one thing. [00:34:20] Speaker 00: It does. [00:34:21] Speaker 04: But it does it always. [00:34:22] Speaker 04: And the claim doesn't require that it do it always. [00:34:24] Speaker 00: Well, no. [00:34:27] Speaker 00: I don't think the patent works that way, Your Honor. [00:34:30] Speaker 00: If it is the invention and it does the things according to the claims, then there's a presumption as to the product. [00:34:37] Speaker 00: If it does it all, I don't understand doing it all the time versus. [00:34:42] Speaker 00: On all data streams. [00:34:44] Speaker 00: on all data streams, right? [00:34:46] Speaker 00: But it does it in accordance with the claim elements. [00:34:50] Speaker 00: That is, it has a data stream interceptor that intercepts. [00:34:52] Speaker 03: I guess the concern is if we conclude the same way the board concluded that the claim language itself is broad, so broad that it does not require full data encryption. [00:35:07] Speaker 03: It requires something much less than full data encryption. [00:35:12] Speaker 03: And then there's a lot of variety on the way up to full data encryption. [00:35:17] Speaker 03: Then the concern is if you have objective indicia that full data encryption is commercially successful or praiseworthy, that doesn't feel like a complete match to the claimed invention. [00:35:33] Speaker 03: And so the requirement that in order to enjoy a presumption of nexus that [00:35:40] Speaker 03: Your commercial product has to be has to is in fact the claimed invention Doesn't quite make it under the facts here. [00:35:49] Speaker 03: Does that make sense? [00:35:50] Speaker 03: Do you understand the premise of the question? [00:35:53] Speaker 00: I think I do I guess you're under saying is if it's so broad Why is there why isn't there a present? [00:36:01] Speaker 00: Why is there should there be a presumption in this case? [00:36:03] Speaker 00: I think the all we can do is go back to the analysis of the case law which is I [00:36:08] Speaker 00: that it is the invention that the patent describes doing this encryption module in an ASIC. [00:36:15] Speaker 00: The ASIC only has a single purpose. [00:36:17] Speaker 00: It's not like a cell phone that can do different things. [00:36:20] Speaker 00: And the evidence in this case is unrebutted. [00:36:25] Speaker 00: The board didn't go off on lack of proof. [00:36:29] Speaker 00: It said the Nexus wasn't met because it didn't address specific elements, and that's not the test. [00:36:36] Speaker 00: Seagate overlooks that the other evidence, which is not just the fact of the declaration that was unrebutted, but their own admissions and their answer to the complaint. [00:36:47] Speaker 00: They point to the complaint that ANOVA asserted against them. [00:36:52] Speaker 00: They overlook the answer. [00:36:53] Speaker 00: In the answer, Seagate admitted specific things, including that they met with the inventor, Mr. Wan. [00:37:00] Speaker 00: They entered into agreements, including that for the delivery of ex-wall ASICs. [00:37:05] Speaker 00: which Dr. Conti testified, unrebutted fashion practice, did the invention, was the invention. [00:37:14] Speaker 00: They admitted in their press releases and advertising that the touted features enabled by this invention, the ASICs and their chips, their drives, resulted in over a million sales. [00:37:28] Speaker 00: There's no evidence that Seagate obtained the encryption from anyone during this period other than Innova through these chips. [00:37:35] Speaker 00: All this adds up to the unrebutted evidence of commercial success and strong circumstantial evidence of copying and licensing. [00:37:44] Speaker 00: These products were not only sold by Innova to Seagate, they were licensed along with it, licensed as to these very patents. [00:37:52] Speaker 00: These were single-use devices that did nothing else. [00:37:56] Speaker 00: And they enabled Seagate to make a lot of money on it. [00:38:05] Speaker 02: Thank you. [00:38:06] Speaker 02: The case is taken into submission. [00:38:07] Speaker 02: Thank you both. [00:38:08] Speaker 00: Thank you, Your Honor.