[00:00:00] Speaker 01:
Ladies and gentlemen, good morning.

[00:00:07] Speaker 01:
We have three cases on the calendar this morning.

[00:00:11] Speaker 01:
After the first one, we will take a brief indeterminate but brief recess and an even more distinguished panel will return.

[00:00:26] Speaker 01:
And our first case

[00:00:29] Speaker 01:
is Innova Technology versus Seagate, 2016, 17, 49, 51, and 2039, Mr. Wu.

[00:00:37] Speaker 01:
Good morning, Your Honor.

[00:00:44] Speaker ?:
It's the court.

[00:00:46] Speaker 05:
The 057 patent was allowed over the Sullivan and SATA combination only after the patentee added the predefined categories of command set limitation.

[00:00:58] Speaker 05:
That limitation provided two things that were not disclosed in the prior art.

[00:01:03] Speaker 05:
One, the use of the pre-defined categories.

[00:01:05] Speaker 04:
Let me ask you a housekeeping question.

[00:01:07] Speaker 04:
Yes, sir.

[00:01:09] Speaker 04:
In the blue break of 56, you cite to J 36, 31, 32.

[00:01:14] Speaker 04:
And so I looked.

[00:01:19] Speaker 04:
And 36, 31 wasn't in the joint appendix.

[00:01:22] Speaker 04:
Is it something I need to see?

[00:01:28] Speaker 05:
I'm sorry, Your Honor, that was the opening brief at 56.

[00:01:32] Speaker 05:
Oh, yeah, the brief, 56.

[00:01:38] Speaker 05:
And J.A.

[00:01:44] Speaker 05:
I'm sorry.

[00:01:48] Speaker 04:
J.A.

[00:01:48] Speaker 04:
what, Your Honor?

[00:01:50] Speaker 04:
36, 31 to 32, but 31 isn't in the

[00:01:57] Speaker 04:
in the appendix.

[00:01:59] Speaker 04:
And I want to know if I need to see it.

[00:02:04] Speaker 05:
Well, you would if you wanted to verify that the quoted text is there.

[00:02:12] Speaker 05:
I'm sure it was an oversight, Your Honor.

[00:02:14] Speaker 05:
I apologize.

[00:02:14] Speaker 05:
But the text is quoted there.

[00:02:20] Speaker 05:
I understand that.

[00:02:21] Speaker 05:
Sorry.

[00:02:27] Speaker 05:
That limitation of the predefined categories of commands and limitations by two things that were not... Let me ask you another question.

[00:02:34] Speaker 04:
Yes, Your Honor.

[00:02:36] Speaker 04:
At 66, you cite to 3623.

[00:02:41] Speaker 04:
You purport to quote language from that that could undermine the foundation of Seagate's expert testimony.

[00:02:47] Speaker 04:
That's not in the appendix either.

[00:02:49] Speaker 05:
Your Honor, I actually found that one myself when I looked at that part of the record, and that was an oversight, wasn't it, Ferdinand?

[00:02:56] Speaker 04:
Well, you ought to take more care.

[00:02:58] Speaker 04:
I'm sorry?

[00:02:59] Speaker 04:
I said you ought to take more care.

[00:03:01] Speaker 04:
Yes, Ron, I agree.

[00:03:02] Speaker 04:
I apologize.

[00:03:03] Speaker 01:
Well, while we're on this, I'd like to ask you, how can you justify having asked for 5,000 extra words on the ground that you had three appeals, but they're all the same?

[00:03:17] Speaker 01:
And you didn't differentiate between them.

[00:03:18] Speaker 01:
It looks like you got an extra benefit.

[00:03:21] Speaker 01:
You burdened the court based on false pretenses.

[00:03:25] Speaker 05:
So they're all the same, but there are slight differences.

[00:03:29] Speaker 05:
But you're right, there are commonalities to all of them.

[00:03:33] Speaker 05:
And we felt that it was important to be able to explain all of the differences.

[00:03:38] Speaker 01:
I don't recall seeing the differences.

[00:03:40] Speaker 01:
They all hung on the same predefined category language.

[00:03:46] Speaker 01:
Yes.

[00:03:47] Speaker 01:
Go ahead and proceed.

[00:03:48] Speaker 01:
Yes, Your Honor.

[00:03:48] Speaker 01:
But I want to convey that we thought this was

[00:03:51] Speaker 01:
an abuse of the court's procedures?

[00:03:54] Speaker 05:
Well, we anticipated that there would be differences at the time we asked for it and it turned out not to be the case because you wanted to focus... Well, why do you use... If you found out that wasn't the case, did you consider maybe not using the extra words that you had requested?

[00:04:10] Speaker 05:
That thought did cross my mind, Your Honor.

[00:04:11] Speaker 05:
I apologize.

[00:04:13] Speaker 05:
Seemed to have been off to a not very good start here.

[00:04:18] Speaker 05:
The two things that are not disclosed in the prior are use of the predetermined, predefined category of command set to determine encryption decisions, and making that encryption decision without de-encapsulating the packets by stripping the headers from the payload.

[00:04:32] Speaker 05:
Now the CD8- Can I interrupt you?

[00:04:33] Speaker 00:
I'm sorry, you have a question about that.

[00:04:36] Speaker 00:
Yes.

[00:04:37] Speaker 00:
I understand what you're talking about when you're talking about how the prior is different from this claim, and you're making those points about not having to

[00:04:47] Speaker 00:
and D encapsulate.

[00:04:50] Speaker 00:
But I don't see that in this language responsive to the first data fist associated with a predefined category of command set.

[00:04:59] Speaker 00:
That's really broad.

[00:05:00] Speaker 00:
You're only talking about a first data fist associated with a predefined category of command set.

[00:05:06] Speaker 00:
It doesn't say what that command is.

[00:05:07] Speaker 00:
It doesn't say that there's a second data fist that's associated with a different command set and results in some sort of different action.

[00:05:16] Speaker 00:
It seems to me as if a lot is being read into this claim that simply isn't there.

[00:05:22] Speaker 05:
So the way that works, according to the specification, is to make that decision without having to de-encapsulate.

[00:05:30] Speaker 05:
And that level of detail is found in the dependent claims as well.

[00:05:36] Speaker 05:
Claim 14, for example, talks about how that is not in the link layer, which is a layer that's not the layer where you de-encapsulate.

[00:05:46] Speaker 05:
you'd be encapsulated at the transport layer, which is disclosed in the specification.

[00:05:51] Speaker 00:
Did you argue claim 14 separately from claim 1 before the PTAB and before this court?

[00:05:58] Speaker 05:
Separately?

[00:06:00] Speaker 00:
You know, in the PTO, crimes can rise and fall together if they're not argued separately.

[00:06:08] Speaker 05:
I don't know that we argued it separately, Your Honor, but that is in the record.

[00:06:12] Speaker 05:
Claim 14 is one of the...

[00:06:14] Speaker 05:
that are being challenged in this matter, and we have addressed that.

[00:06:19] Speaker 05:
And what the board and CDEA did was point to no disclosure in either of the two references, Sullivan or the solder references, that disclosed either of those two things.

[00:06:32] Speaker 05:
That is, using predefined categories to encrypt or doing that without stripping the header from the payload, that is, without the encapsulate.

[00:06:42] Speaker 05:
They only point to general principles from Sid Sullivan that you don't encrypt commands and that in SATA certain data payloads are associated with certain command packets.

[00:06:56] Speaker 05:
The board in Seagate criticized Innova for not reading the references together, but what they really mean by that is these elements are not discussed in either reference and so they have to extrapolate from those general principles to arrive at the missing elements.

[00:07:11] Speaker 05:
And that's not reading the references together.

[00:07:13] Speaker 05:
That's finding the missing element through a hindsight analysis.

[00:07:17] Speaker 05:
Dr. Long, their expert, almost admitted as much what he could not explain during his deposition, how he put together the list of categories of command sets that just happened to match the list from the 057- Let me ask you about that, their expert.

[00:07:33] Speaker 04:
You argue in various places in the brief that PTAB improperly credited

[00:07:40] Speaker 04:
Seagate's attempt to use common sense and use sight to their expert.

[00:07:47] Speaker 04:
Does the PTABS, I couldn't find anywhere where they used the phrase common sense in the written decision.

[00:07:56] Speaker 04:
Can you show me where they credited Seagate's expert's argument regarding common sense?

[00:08:02] Speaker 05:
They didn't expressly do so, but they relied on his declaration and his declaration

[00:08:08] Speaker 05:
talked about common sense.

[00:08:09] Speaker 05:
So that's sort of a double reach, isn't it?

[00:08:12] Speaker 05:
Well, no, your honor.

[00:08:13] Speaker 05:
And if they relied on his declaration, and all it said was common sense.

[00:08:18] Speaker 05:
Actually, the words weren't it?

[00:08:19] Speaker 04:
He only said it once.

[00:08:21] Speaker 05:
I'm sorry?

[00:08:21] Speaker 05:
He only used the phrase once that I explained.

[00:08:25] Speaker 04:
That's right.

[00:08:26] Speaker 05:
And that was the one that the court relied on within the technical grasp, creativity, and common sense of the personal skill.

[00:08:35] Speaker 00:
that his analysis spanned about five pages and said a lot more than just common sense.

[00:08:42] Speaker 00:
I think it starts at JA 1080 and goes all the way through to page 1086.

[00:08:51] Speaker 00:
And it says a lot more than common sense.

[00:08:53] Speaker 00:
That's right, Your Honor.

[00:08:55] Speaker 05:
It does.

[00:08:55] Speaker 05:
OK, I thought you just said all he said was common sense.

[00:08:58] Speaker 05:
Well, all he said was with regard to these particular points that were not in the prior art.

[00:09:04] Speaker 00:
Actually, the part I read at 1080 to 1086 all relates to this responsive to the first data fist limitation that we're all talking about today.

[00:09:15] Speaker 05:
That's correct, but what he explains in that discourse is only the general principles of Sullivan and the SATA specification.

[00:09:23] Speaker 05:
That is, he talks about how Sullivan teaches how you don't encrypt demands and you only encrypt the data payload, and he talks about how the SATA specification

[00:09:34] Speaker 05:
tells you that there are certain packets that are associated with certain command packets.

[00:09:39] Speaker 00:
But what he doesn't tell you is how you get to the specific limitation of predetermined categories of command sets from... But he did talk about the idea that you'd have different commands that precede the fist packet and that then from that command you would understand

[00:10:01] Speaker 00:
whether you were to encrypt or not encrypt the subsequent FIS packet.

[00:10:07] Speaker 05:
He did explain that association, but there's nothing in those descriptions that talk about or suggest using this predefined category of command set to encrypt and to do so without de-encapsulating.

[00:10:24] Speaker 00:
Where in your claim does it say do this without de-encapsulating?

[00:10:28] Speaker 00:
Where in your claim does it say

[00:10:30] Speaker 00:
do this without de-encapsulating.

[00:10:32] Speaker 05:
Where is that?

[00:10:33] Speaker 05:
It doesn't say too many words.

[00:10:34] Speaker 05:
In claim 14, it makes explicit reference to using the link layer to accomplish this task.

[00:10:42] Speaker 00:
But also, again, you did not argue claim 14 separately from claim 1, right?

[00:10:48] Speaker 05:
I can't say that I did, Ron.

[00:10:50] Speaker 05:
But it's in the claim.

[00:10:52] Speaker 05:
It's in the claim.

[00:10:54] Speaker 00:
Well, it doesn't talk about de-encapsulation even in claim 14, right?

[00:10:57] Speaker 05:
It doesn't.

[00:10:58] Speaker 05:
It talks about how it's being done in the link layer.

[00:11:00] Speaker 05:
And the specification teaches how that is before the de-encapsulation takes place.

[00:11:08] Speaker 00:
So you're saying it's necessarily so, from the language of that claim, that it must occur before de-encapsulation.

[00:11:15] Speaker 05:
That's correct.

[00:11:16] Speaker 05:
Because as the specification teaches, the de-encapsulation procedure happens in the transport layer, which is the next layer.

[00:11:23] Speaker 05:
past the link layer.

[00:11:24] Speaker 05:
So this pattern is about that.

[00:11:32] Speaker 05:
So what Dr. Long talked about was how these general principles work, and then he extrapolates from that to get to the particular method of the 057 pattern.

[00:11:46] Speaker 05:
But there's no explanation as to how you actually get from there from one place to the other.

[00:11:53] Speaker 04:
In the blue brief, you quote from his statement that he's not aware of any evidence of commercial success, etc., the other secondaries.

[00:12:05] Speaker 04:
How is that evidence of anything other than his ignorance?

[00:12:08] Speaker 04:
And why on earth should their expert be expected to present evidence of objective indicia when it's used as rebuttal evidence to prima facie a case of obviousness?

[00:12:21] Speaker 05:
Well, the case law talks about how the secondary considerations must always be considered in any kind of obvious analysis.

[00:12:32] Speaker 05:
Dr. Long reaches the conclusion that this particular limitation, the predefined category of compensing, was obvious without looking at any of the secondary considerations.

[00:12:44] Speaker 05:
That's the only point we're making there.

[00:12:46] Speaker 05:
that he didn't do that.

[00:12:48] Speaker 01:
Mr. Wu, you're well into your puddle, Tom.

[00:12:50] Speaker 01:
You can continue or save it.

[00:12:52] Speaker 05:
I guess I'll have to save it, Your Honor.

[00:12:56] Speaker 01:
Thank you.

[00:12:57] Speaker 01:
Mr. Brooks.

[00:13:16] Speaker 02:
Thank you, Your Honor.

[00:13:17] Speaker 02:
And may it please the Court, I'm going to make three points.

[00:13:20] Speaker 02:
The first point I'm going to make is about Claim 14.

[00:13:23] Speaker 02:
On the Appendix 24, in the Board decision, the Board said upon reviewing unchallenged contentions and supporting evidence regarding dependent claims 2 to 4, 6, 8, 10 to 15, and 20 to 27, we find sufficient evidence.

[00:13:37] Speaker 02:
So Claim 14 was unchallenged.

[00:13:39] Speaker 02:
We contended it was obvious.

[00:13:41] Speaker 02:
We presented

[00:13:42] Speaker 02:
our case and they did not challenge that.

[00:13:44] Speaker 02:
So 1014 is not challenged alone, not challenged on appeal.

[00:13:47] Speaker 02:
Also, there was no argument for any special claim construction of claim one in which you would read something from one of the dependent claims.

[00:13:55] Speaker 00:
Did you see construction of this limitation?

[00:14:00] Speaker 00:
Neither one.

[00:14:00] Speaker 00:
And that BTAP didn't construe it?

[00:14:02] Speaker 00:
Neither one.

[00:14:02] Speaker 00:
You were saying, did it?

[00:14:03] Speaker 02:
Yes, that's correct.

[00:14:05] Speaker 02:
That's the first point.

[00:14:06] Speaker 02:
The second point I want to make is simply

[00:14:09] Speaker 02:
about the Sullivan reference, which is the beginning reference here.

[00:14:13] Speaker 02:
The Sullivan reference is the first reference to the piece I was looking at.

[00:14:17] Speaker 02:
We're all talking about this data associated with the predefined category of command set.

[00:14:22] Speaker 02:
The important point we want to make about Sullivan is there was a disagreement about the scope and content of Sullivan.

[00:14:30] Speaker 02:
We argued that Sullivan should be read broadly, because it has these broad statements that it will handle encryption with various different types of protocols, and that what you want to do explicitly incorporates the SATA standard.

[00:14:45] Speaker 02:
Yes, exactly.

[00:14:45] Speaker 02:
Repeatedly.

[00:14:46] Speaker 02:
And they say you look for the user data and you encrypt that.

[00:14:49] Speaker 02:
You look for the control information, you don't encrypt that.

[00:14:52] Speaker 02:
And then they give an example.

[00:14:54] Speaker 02:
That example is not serial ATA.

[00:14:56] Speaker 02:
And then they go on to have broad claims

[00:14:59] Speaker 02:
once again emphasizing that you're looking for user data.

[00:15:02] Speaker 02:
And the dispute below is the following.

[00:15:05] Speaker 02:
Should the p-tab read Sullivan as a broad teaching in which Sullivan is saying, look for user data and encrypt that, look for control information, don't encrypt that, and apply it and accommodate this system, that's the word they use, to whatever protocol you're using?

[00:15:20] Speaker 02:
Or should the p-tab interpret Sullivan almost like a straight jacket and say the following?

[00:15:26] Speaker 02:
There is one example in which the

[00:15:29] Speaker 02:
The user data is in a payload, and the command information is in a header.

[00:15:33] Speaker 02:
And in that one example, Sullivan releases the user data for encryption, and then eventually brings it back together.

[00:15:42] Speaker 02:
Should that be the only way you ever read anything coming out of Sullivan?

[00:15:47] Speaker 02:
In other words, no matter what protocol you're using, even serial ATA in which you split up the turn into a transaction, you go from a packet to a transaction, and in a SATA recognize situation, you have

[00:15:59] Speaker 02:
a command in the first fizz, a resulting data fizz a few fizzes later, and the resulting data fizz will either be user data, depending on the command, or control information.

[00:16:09] Speaker 02:
And what Innova was arguing to the p-tab is, ignore the command structure of SATA, ignore the fact that a person of ordinary skill in the arc understood that commands dictated the contents of the resulting fizzes, ignore the fact that a person of ordinary skill in the arc knew that commands were associated with resulting fizz,

[00:16:28] Speaker 02:
Ignore all that.

[00:16:30] Speaker 02:
And here's what you should find.

[00:16:32] Speaker 02:
Based on Sullivan, the combination of Sullivan and SATA will be inoperable.

[00:16:37] Speaker 03:
And they make this argument over and over again.

[00:16:39] Speaker 03:
Well, other than its compound nature, that'd be a swell question to ask an expert on cross-examination.

[00:16:47] Speaker 03:
Yes.

[00:16:48] Speaker 03:
Yes.

[00:16:48] Speaker 03:
And that's right.

[00:16:50] Speaker 02:
We'd have to break it down.

[00:16:50] Speaker 02:
But that's right, Your Honor.

[00:16:51] Speaker 02:
And so where were we before?

[00:16:52] Speaker 00:
I think your expert was deposed.

[00:16:54] Speaker 02:
Absolutely.

[00:16:56] Speaker 02:
And so what we were saying to the PTAB is,

[00:16:59] Speaker 02:
We don't think it's reasonable to read Sullivan as treating the same packet the same way every time, regardless of the protocol, when Sullivan explicitly says it'll work with different protocols and it'll accommodate different protocols.

[00:17:13] Speaker 02:
And so what the board did is it made very specific findings.

[00:17:16] Speaker 02:
I just want to briefly mention them.

[00:17:18] Speaker 02:
The board rejected the patent owner's argument that Sullivan taught that, quote, each packet must be treated identically for encryption purposes, regardless of what protocol you're working with.

[00:17:27] Speaker 02:
The board found no support for patent owners' argument that every package should be treated the same way, regardless of the communication protocol.

[00:17:35] Speaker 02:
And the board found that it's strange rigidity that a skilled artisan would apply Sullivan in a manner that the patent owner urges when doing so would result in a non-functioning device.

[00:17:45] Speaker 02:
This is at appendix 19.

[00:17:46] Speaker 02:
And then the board said patent owners' reading of Sullivan does not account adequately for the disclosure in Sullivan that is broader.

[00:17:52] Speaker 02:
Here's my point.

[00:17:54] Speaker 02:
The issue on appeal is simply this.

[00:17:56] Speaker 02:
The key tab said, we're rejecting your straight jacket argument of treating every single packet the same way.

[00:18:01] Speaker 02:
That's not reasonable.

[00:18:02] Speaker 02:
There's no support.

[00:18:03] Speaker 02:
It's strange utility.

[00:18:04] Speaker 02:
Instead, we're going to interpret the scope and content of this reference broadly.

[00:18:08] Speaker 00:
So on appeal, the question is, does the key tab rely on the admitted prior art in column 3 to support that?

[00:18:14] Speaker 00:
Or did anybody mention the admitted prior art?

[00:18:17] Speaker 00:
Do you know what I'm talking about?

[00:18:18] Speaker 00:
The conventional method?

[00:18:18] Speaker 00:
Yeah.

[00:18:19] Speaker 00:
If you look at column 3, lines 34 to 50, there's the patent in suit.

[00:18:25] Speaker 00:
the 057 patent.

[00:18:27] Speaker 00:
We talked about how this bypass true and bypass false concept was in the prior earth.

[00:18:34] Speaker 02:
Yes.

[00:18:35] Speaker 02:
What the board relied on, the expert went into how everything works, how that was understood.

[00:18:41] Speaker 02:
A person with reporting skill understood how this all worked.

[00:18:43] Speaker 02:
This was all common knowledge, those kinds of things, how encryption works and the like.

[00:18:47] Speaker 02:
But importantly, the board absolutely rejected the idea

[00:18:52] Speaker 02:
that when putting Sullivan together with SATA, it would somehow be inoperable.

[00:18:55] Speaker 02:
And I just want to make the point that on appeal, Innova in his reply brief says the following.

[00:18:59] Speaker 02:
In contrast, this is page 25, the board here explicitly recognized that the Sullivan-SATA combination would yield in an operative device.

[00:19:08] Speaker 02:
The board did not explicitly recognize that the Sullivan-SATA combination would yield in an operative device.

[00:19:14] Speaker 02:
The board said the opposite.

[00:19:16] Speaker 02:
The board explicitly rejected the argument

[00:19:19] Speaker 02:
that the combination would yield an inoperable device.

[00:19:21] Speaker 02:
Over and over again, our expert explained

[00:19:36] Speaker 02:
that in SATA, it's all about separating.

[00:19:39] Speaker 02:
Remember, we had one packet in Sullivan with the command information in the header and the payload information having the user data.

[00:19:45] Speaker 02:
That's the one example in Sullivan.

[00:19:46] Speaker 02:
But when you move to SATA, everyone understands it's not a transaction.

[00:19:50] Speaker 02:
So the first fist has the command, and the resulting fist has the user data.

[00:19:54] Speaker 02:
And what our expert explained repeatedly, kept using the word association,

[00:19:59] Speaker 02:
you always know in SATA that SATA itself has created this relationship, this association between a command and resulting user data.

[00:20:07] Speaker 02:
That's created by SATA.

[00:20:09] Speaker 02:
Their expert agreed.

[00:20:10] Speaker 02:
Their expert said, I'm looking at how Seagate's expert has set forth these FISs.

[00:20:16] Speaker 02:
I agree.

[00:20:17] Speaker 02:
You got it right.

[00:20:18] Speaker 02:
So the experts agreed that when you had a command and a resulting FIS, you would know whether it's user data or control information.

[00:20:25] Speaker 02:
So there was no disagreement on the experts.

[00:20:27] Speaker 02:
And I just want to make this

[00:20:28] Speaker 02:
point about the reply brief.

[00:20:31] Speaker 02:
Even though it was undisputed that there was an association created by SATA between commands and resulting FISs, which as Jorana was mentioning, our expert went into the steps as to how that would lead to this predefined category.

[00:20:46] Speaker 02:
Sullivan tells you search for user data and encrypt that.

[00:20:50] Speaker 02:
Don't encrypt control information.

[00:20:51] Speaker 02:
Now you go to SATA.

[00:20:53] Speaker 02:
Where do you find user data?

[00:20:54] Speaker 02:
You follow the commands.

[00:20:56] Speaker 02:
Certain commands tell you where user data is.

[00:20:58] Speaker 02:
Other commands will tell you control information.

[00:21:00] Speaker 02:
And that is recognized by the prior art.

[00:21:02] Speaker 02:
In other words, a person who organized that understood that.

[00:21:05] Speaker 02:
And each expert agreed that that's how it worked.

[00:21:08] Speaker 02:
And what are they saying in the reply brief on page 24?

[00:21:11] Speaker 02:
They say the following.

[00:21:11] Speaker 02:
This is the end of this appeal.

[00:21:13] Speaker 02:
They say this.

[00:21:14] Speaker 02:
The inventor realized, this is on page 24 of the reply brief, that certain SATA commands, but not all of them, were consistently associated with streams of subsequent data fixes

[00:21:25] Speaker 02:
or packets with payloads that should be encrypted.

[00:21:28] Speaker 02:
So that's what the inventor realized.

[00:21:29] Speaker 02:
What the inventor realized is that certain set of commands were associated with things that should not be encrypted.

[00:21:36] Speaker 02:
And then conversely, certain commands were consistently associated with streams of subsequent data fixes with encryptable payloads.

[00:21:42] Speaker 02:
In other words, what the inventor realized is there were certain commands that would say you don't encrypt because that's control information.

[00:21:49] Speaker 02:
And certain commands that would say you do encrypt because that's user data.

[00:21:53] Speaker 02:
Those two things that the inventor realized

[00:21:55] Speaker 02:
are exactly what our experts said is in SATA.

[00:21:59] Speaker 02:
SATA creates that.

[00:22:00] Speaker 02:
There's nothing to realize.

[00:22:01] Speaker 02:
There's nothing to invent.

[00:22:03] Speaker 02:
And their expert agreed that our expert was right.

[00:22:06] Speaker 02:
So our point is there was no invention here.

[00:22:08] Speaker 02:
What there was was a reference that said, look for user data.

[00:22:13] Speaker 02:
Encrypt that.

[00:22:14] Speaker 02:
And to your honest point, that's all we need for this appeal.

[00:22:16] Speaker 02:
We don't need anything more.

[00:22:17] Speaker 02:
There's nothing else going into this.

[00:22:19] Speaker 02:
And when you go to SATA, to look for the user data, what do you do?

[00:22:23] Speaker 02:
SATA itself

[00:22:24] Speaker 02:
not our expert, not common sense, SATA itself created a relationship between commands and user data.

[00:22:31] Speaker 02:
So if you want to know where the user data is, you follow the commands.

[00:22:35] Speaker 02:
And that's exactly what our experts said.

[00:22:37] Speaker 02:
And they do admit in footnote one, one in skill in the art may have known from the SATA standard that certain commands are generally associated with certain subsequent data physics.

[00:22:46] Speaker 02:
So we think where we are is

[00:22:49] Speaker 02:
is essentially undisputed that SATA creates this relationship.

[00:22:53] Speaker 02:
And what our expert did step by step over pages is explain how once you start with Sullivan and you're told to accommodate different protocols, when you implement Sullivan with SATA and you follow the commands, you're going to end up with this predefined category.

[00:23:08] Speaker 02:
And why is that?

[00:23:09] Speaker 02:
Because Sullivan says encrypt user data.

[00:23:12] Speaker 02:
So to find user data, you just look through the commands that show user data.

[00:23:16] Speaker 02:
And there's no argument that our expert got that wrong.

[00:23:19] Speaker 02:
that our expert came up with the wrong commands.

[00:23:20] Speaker 02:
And so for that reason, we would ask that the court affirm it.

[00:23:24] Speaker 01:
Thank you, Mr. Gross.

[00:23:27] Speaker 01:
Mr. Wu, you have a predefined time.

[00:23:31] Speaker 01:
But since we asked you a lot of questions, we'll give you your full five minutes if you need it.

[00:23:36] Speaker 05:
Thank you, Your Honor.

[00:23:37] Speaker 05:
The first point I want to address is the fact that we did not challenge time 14.

[00:23:42] Speaker 05:
We did challenge it, but it's on the same basis that we challenged the other claims.

[00:23:47] Speaker 05:
As to the extrapolation from Sullivan and the SATA references, the board, and I just heard counsel, criticized Innova for not showing where in Sullivan it said that every packet should be treated the same way.

[00:24:05] Speaker 05:
But I think that's exactly backwards.

[00:24:07] Speaker 05:
The burden should have been on Seagate, the petitioner, to show where in Sullivan or SATA there was a discussion of doing encryption in a way that was different from Sullivan.

[00:24:15] Speaker 05:
That is, without de-encapsulating the packets.

[00:24:19] Speaker 05:
He points to the relationship between the certain command packets and certain data packets that are best expressly set out in SADA.

[00:24:31] Speaker 05:
But he doesn't really put them together and explain why it is that you would use that particular method of doing it.

[00:24:38] Speaker 05:
There's never any discussion of that in Dr. Long's declaration or his

[00:24:44] Speaker 05:
deposition testimony.

[00:24:46] Speaker 05:
All he says is that somebody else put together this command set for me, I don't know how it was done, they're just the obvious ones.

[00:24:53] Speaker 05:
That's conclusory in its hindsight after looking at the answer which was given in the 057 pattern.

[00:25:02] Speaker 05:
Only one case that's been discussed by both sides

[00:25:06] Speaker 05:
has found that the proper use of common sense to fill in a missing limitation, and that was the Perfect Web case.

[00:25:14] Speaker 05:
The Perfect Web case was about an email delivery system with four different elements, A, B, C, and D. The missing element there was element D, which was just a rehash of A, B, and C, which is the actual method, the core method of that pattern.

[00:25:34] Speaker 05:
D just said,

[00:25:35] Speaker 05:
repeat A, B, and C until you get to the desired number of delivered emails.

[00:25:40] Speaker 05:
That was straightforward and simple.

[00:25:43] Speaker 05:
And on that basis, the court allowed common sense to fill in the blank.

[00:25:49] Speaker 05:
But there's no discussion in either reference that tells you that you should use a predefined category of command set to do encryption decisions.

[00:25:59] Speaker 05:
And there's nothing that says to a person of skill

[00:26:03] Speaker 05:
that you should do so without de-encapsulation.

[00:26:08] Speaker 04:
Are the 057 patents groups of commands all associated with either user data, which is encrypted, or control information, which is not encrypted?

[00:26:22] Speaker 05:
It identifies a set where the associated

[00:26:28] Speaker 05:
data fixes do not contain any embedded commands themselves.

[00:26:38] Speaker 05:
The Orendi case talked about the use of common sense in the obviousness determination.

[00:26:48] Speaker 05:
And it said that was subject to three subjects.

[00:26:51] Speaker 05:
One that's usually used to fill in in missing motivation to combine.

[00:26:55] Speaker 05:
That's not what we have here.

[00:26:56] Speaker 05:
And two, it's only allowed where you have... You don't have a reference to common sense.

[00:27:02] Speaker 04:
I'm sorry?

[00:27:03] Speaker 04:
I said you don't have a reference to common sense in the decision.

[00:27:08] Speaker 04:
It's... You're arguing for implicit reference.

[00:27:13] Speaker 05:
But that's all that the board really looked at.

[00:27:18] Speaker 05:
The board looked at Dr. Long's declaration.

[00:27:22] Speaker 05:
And if you look at the section where he discusses

[00:27:25] Speaker 05:
how you get to this limitation of predefined categories of command sets, that's really all he really said.

[00:27:31] Speaker 04:
Wait, if you're saying weighing the credibility of a witness is common sense, I'd agree with you.

[00:27:37] Speaker 05:
Well, no, that's not what I'm saying.

[00:27:40] Speaker 05:
What I'm saying is that he never really explains how one would really get from the idea that you don't encrypt commands and that you have an association of certain command

[00:27:53] Speaker 05:
commands and packets in SATA to the idea that you would definitely use a predetermined category of command set to do the encryption decisions without opening up the packets.

[00:28:06] Speaker 05:
Sullivan only talks about opening up the packets.

[00:28:10] Speaker 00:
Sullivan does not talk about any other... Your claims don't talk about opening and not opening the packets either.

[00:28:17] Speaker 05:
2014, again, talks about the link layer, and the link layer is implicit in that.

[00:28:22] Speaker 00:
There's no... You haven't argued that before this Court or before the PCAP.

[00:28:30] Speaker 05:
That expressed argument was not made to the PCAP.

[00:28:33] Speaker 05:
I agree.

[00:28:34] Speaker 05:
I see that my time is up.

[00:28:36] Speaker 05:
I don't know if you have any more questions.

[00:28:39] Speaker 01:
Thank you.

[00:28:39] Speaker 01:
Mr. Wohl, thanks for your question.