[00:00:00] Speaker 03: 18-1858 HTC Corporation versus Cellular Communications, Mr. Nash. [00:00:14] Speaker 00: Thank you, Your Honor. [00:00:15] Speaker 00: May it please the Court. [00:00:17] Speaker 00: This is a matter of claim construction under the broadest reasonable interpretation. [00:00:22] Speaker 00: The Board improperly imposed a structural restriction on software claims that are focused on functionality. [00:00:29] Speaker 00: And because there's nothing in the claim language or the specification that requires that restriction, that construction's incorrect. [00:00:36] Speaker 00: And the 923 patent relates to controlling applications at a communication terminal. [00:00:40] Speaker 00: That's just like controlling the apps on an iPhone. [00:00:44] Speaker 00: And the method claim, claim one, has three steps. [00:00:47] Speaker 00: Sending messages towards the network. [00:00:52] Speaker 00: Two, diverting a message of the messages to a controlling entity. [00:00:57] Speaker 00: And three, controlling [00:00:58] Speaker 00: in the entity, in the controlling entity, whether the application behaves in a predetermined manner. [00:01:04] Speaker 01: I don't remember. [00:01:05] Speaker 01: Have you made an argument for different treatment of claim one and claim 24? [00:01:09] Speaker 01: Or does this issue about separate components apply, in your view, equally to the two claims? [00:01:20] Speaker 00: I think that there's somewhat of a distinction between the two. [00:01:23] Speaker 00: But I don't think that it's a meaningful distinction. [00:01:26] Speaker 00: I think in the context of the method claim, [00:01:28] Speaker 00: We have diverting without any requirement referring to any type of element, claim element, which is unlike the third step of claim one, where we have controlling in the controlling entity. [00:01:40] Speaker 00: So there's a controlling entity identified in claim one, but nothing else with respect to what does the diverting. [00:01:45] Speaker 03: So it's unrestricted. [00:01:45] Speaker 03: That's true, but the problem is that claim 24 refers to separate entities. [00:01:52] Speaker 03: So maybe there's a difference between the method claims and the device claims. [00:01:56] Speaker 00: I think that there's not a difference that's meaningful with respect to how the board ended up construing these claims. [00:02:03] Speaker 00: And here's why. [00:02:04] Speaker 00: I think it refers to not different entities, but a diverting unit and a controlling entity. [00:02:10] Speaker 00: And it's a diverting unit configured to divert messages to a controlling entity. [00:02:16] Speaker 03: What's important about that I think is... Well, are you saying that the unit, the diverting unit and the controlling entity can be the same entity? [00:02:24] Speaker 00: I think that a diverting unit could be a part of a controlling entity, Your Honor. [00:02:27] Speaker 00: I think the word unit, in fact, implies that it could be a part of something bigger or a part of something greater. [00:02:32] Speaker 00: That's why we have a business unit that's a part of a larger company, or we have intensive care units that are part of a larger hospital. [00:02:39] Speaker 00: I think the same is true for a diverting unit. [00:02:42] Speaker 00: A diverting unit could just as easily be a part of a controlling entity. [00:02:45] Speaker 00: It could be a part of another entity, or it could stand alone. [00:02:49] Speaker 02: So in that... In your description of a hospital, for example, those units [00:02:55] Speaker 02: have tangible aspects to them. [00:02:58] Speaker 02: And here, we're just talking about logical processes, correct? [00:03:03] Speaker 00: That's correct, Your Honor. [00:03:05] Speaker 02: I think that that's an important distinction about... I mean, should we apply the same logic we use for apparatus claims? [00:03:18] Speaker 02: Should we apply that to software claims? [00:03:21] Speaker 02: Or just method claims? [00:03:23] Speaker 00: I think in the context of a physical apparatus claim, I think that's part of the distinction that was the problem that the board relied on, was case law involving physical devices. [00:03:32] Speaker 00: I don't think that that type... Like Bekton? [00:03:35] Speaker 00: Like Bekton and NTP and the Microsoft Proxycon case. [00:03:39] Speaker 00: Does Bekton apply to software, software claims? [00:03:44] Speaker 00: No, I don't think so, Your Honor. [00:03:45] Speaker 00: To the extent there is a presumption that's borne out by Bekton and the cases that follow it, I don't think that that's necessarily applicable in the context of software. [00:03:53] Speaker 00: absent some form of restriction that you see in the claim language or in the specification that might make that distinction. [00:03:59] Speaker 03: What does the specification here tell us about what unit and entity mean in the claims? [00:04:05] Speaker 00: Well, the word unit doesn't appear in the context of the specification at all. [00:04:09] Speaker 00: It only appears in the claim language. [00:04:11] Speaker 00: The word entity appears, but only in the context of a controlling entity. [00:04:15] Speaker 00: So you see that they talk about a controlling entity throughout the specification and they refer to the trusted agent. [00:04:21] Speaker 00: as one example of what could be a controlling entity. [00:04:24] Speaker 00: But what's important is that the specifications focused on the functionality and not really the implementation of that functionality. [00:04:30] Speaker 00: They teach flexibility on how to implement each of these functions. [00:04:34] Speaker 00: So for example, in the context of the controlling entity, we're taught that the controlling function can be implemented through modifications to existing software, like modifications to the instructions for the DRM agent. [00:04:47] Speaker 00: It could also be implemented with a dedicated [00:04:49] Speaker 00: trusted agent, so something that's separate from the DRM agent. [00:04:53] Speaker 00: And the same is true for the diverting functionality. [00:04:56] Speaker 00: We see that they teach it broadly. [00:04:58] Speaker 00: You have diverting functionality that can be implemented by modifying instructions in an existing protocol stack, or you can implement it with a separate middleware modification module. [00:05:08] Speaker 00: I think that that's important because these are simply examples of how to implement it, and I think the Pat needs to recognize that when we're talking about software, what's important is the functionality, [00:05:18] Speaker 00: and a skilled programmer or a skilled software engineer recognizes that there's hundreds, thousands of ways to implement the code that implements that functionality. [00:05:28] Speaker 00: So it was going to give a couple examples. [00:05:29] Speaker 01: Well, can I just ask this, and I don't make it the wording of this question wrong. [00:05:35] Speaker 01: The board, as I understand or remember its opinion, [00:05:41] Speaker 01: adopted a notion of separate component, but I don't remember that that notion excluded separate software modules. [00:05:49] Speaker 01: That is, you could have separate components under the board's view met by separate software modules. [00:05:58] Speaker 01: If that's right, I'm not sure what the objection is as a matter of claim construction. [00:06:04] Speaker 01: to the board's claim construction and I think you've only presented a claim construction argument here and not an argument that under that view of separate component there must be the prior art that shows the element. [00:06:24] Speaker 00: Yes, Your Honor. [00:06:25] Speaker 00: I think I understand the question. [00:06:26] Speaker 00: I have two responses. [00:06:27] Speaker 00: First, I think it is an important aspect of claim construction because [00:06:31] Speaker 00: It's not just the requirement that there be a component, but that there was a negative limitation that was effectively imposed on that second step. [00:06:40] Speaker 00: It said that diverting could be done by anything but the controlling entity. [00:06:44] Speaker 00: And so I think that that's part of the problem, and that's the claim construction aspect. [00:06:49] Speaker 01: But in terms of claim construction, at least as I remember the specification, and I'm listening to your argument about functionality so that you can implement all of this in software, if the board's claim construction requires nothing more than separate software modules, and I don't mean anything technical by that, but separate instructions, [00:07:13] Speaker 01: then it seems to me that it's a pretty fair claim construction, and it's not tied to different hardware or anything. [00:07:23] Speaker 01: And once it's a pretty fair claim construction, I'm not sure you've made any separate argument for disturbing the bottom line. [00:07:32] Speaker 00: Well, I think we did, Your Honor. [00:07:33] Speaker 00: I think at the Blue Brave pages 43 to 48, that's where we argue that to the extent that this construction [00:07:41] Speaker 00: is considered to be correct and we don't think that it is. [00:07:44] Speaker 00: But there's a problem with that construction because we're not able, there wasn't sufficient analysis that the board applied in comparing that construction to the arguments that we raised. [00:07:57] Speaker 00: So for example, if you look at the joint appendix page 11, you'll see that the board acknowledged that we actually pointed to one part of the Dia Vera references isolator engine 225 as doing the diverting. [00:08:10] Speaker 00: And we pointed to another part of the Diavero Isolator Engine 225 that's doing the controlling. [00:08:16] Speaker 00: And it says that at the top of the paragraph at the bottom of page 11. [00:08:20] Speaker 00: But then in its analysis, it concludes with one conclusory sentence that it said, petitioner describes the different functions, but does not show that the isolator engine is two separate components. [00:08:32] Speaker 00: It didn't provide any explanation as to why pointing to different parts of Isolator Engine 225 wasn't a sufficient [00:08:39] Speaker 00: demonstration of separate components or why pointing to separate functions wasn't a demonstration of separate components is a very conclusory analysis. [00:08:48] Speaker 00: And similar to Your Honor's previous case and the personal web tech case from February of this year, without sufficient analysis, this Court and the parties are unable to determine whether the Board's decision was arbitrary, capricious, and abusive discretion or otherwise not in accordance with law. [00:09:06] Speaker 00: We do make that argument, and I think, you know, principally at pages 43 to 48. [00:09:11] Speaker 00: So even if this construction were considered correct, I think that the board didn't provide the analysis on what it meant by separate components, because we did argue that the software in Isolator Engine 225 had a portion or an aspect or a part that was doing diverting, and it also had a different portion, aspect, or part that was doing controlling. [00:09:35] Speaker 00: The board acknowledged that. [00:09:36] Speaker 00: That's at the joint appendix pages 571 and 573. [00:09:40] Speaker 00: It also came up at the hearing in page 687 of the transcript. [00:09:47] Speaker 03: Well, what did the patent owner argue to the board was the meaning of unit and entity and separate components? [00:09:58] Speaker 03: How was that framed before the board? [00:10:01] Speaker 00: Well, leading up to the hearing, Your Honor, in the briefing, the patent owner repeatedly framed it in the terms of the ordering of steps. [00:10:09] Speaker 00: And there wasn't an express dispute that we had with the ordering of steps. [00:10:12] Speaker 03: So their briefing was focused on... What did it say about separate components? [00:10:17] Speaker 00: I don't recall that they actually introduced the idea of separate components expressly. [00:10:21] Speaker 00: They more talked about that diverting needed to happen first, and then controlling would happen second. [00:10:27] Speaker 00: And that because of that relationship, [00:10:31] Speaker 00: by pointing to isolator engine 225, it wasn't diverting first and then controlling, which I think is another way of saying that something can't divert to itself. [00:10:41] Speaker 00: But I think that that's kind of true in a common parlance. [00:10:44] Speaker 00: I think that controlling entities divert to themselves all the time. [00:10:48] Speaker 00: I know that as a parent, I'm very controlling, and I divert to myself quite often. [00:10:52] Speaker 00: In fact, my kids are trying to get their homework in or a Christmas list to grandma. [00:10:56] Speaker 01: So you just do both of those for them? [00:10:58] Speaker 00: Well, I reach out and I divert. [00:11:00] Speaker 00: I take, sometimes I modify and I'll cross something off that list. [00:11:04] Speaker 03: And then I'll give it. [00:11:05] Speaker 03: And these patent cases, people love these analogies. [00:11:09] Speaker 00: Sometimes in the context of software, your honor, it's easier to understand in ways of analogy. [00:11:14] Speaker 00: But I don't think that the restrictions that you find in the case law that are dealing with physical embodiments and physical components, where there's a requirement that there be separation, like we see in the Beckton case and in the Microsoft case and in the NTP case, I don't think that that type of presumption applies here [00:11:30] Speaker 00: particularly when we're in the context of a broadest reasonable interpretation. [00:11:34] Speaker 00: Because there's nothing in the claims that would preclude the controlling entity from doing the diverting and the controlling. [00:11:42] Speaker 00: And there's certainly nothing in the specification that precludes the controlling entity from doing both diverting and controlling. [00:11:48] Speaker 00: It's important that there be separate functions, but the implementation of how to do that functionality. [00:11:53] Speaker 02: Isn't that taking BRI a little bit too far? [00:11:57] Speaker 00: I don't think it is, your honor. [00:11:58] Speaker 00: I don't think in this context it is. [00:12:00] Speaker 00: If there were some teaching, first, if there was a requirement in the claim language that required separation, I think it would be taking the, the BRI too far. [00:12:09] Speaker 00: I think if there was something in the specification that taught that it was important to the invention that there be a separation, or that there, that that was the point of novelty, or that there were advantages to it, or that there were disadvantages to including it within the same entity, then I think that we would have a situation where perhaps the broadest reasonable interpretation, it wouldn't be reasonable. [00:12:30] Speaker 00: But here, there's nothing like that in either the claim language or the specification that would imply that there's anything improper or contrary to the invention. [00:12:40] Speaker 00: And because of that, I think, just like in the entertainer Hulu case that this Court had, I know it's non-precedential, but I think the rationale is applicable here. [00:12:49] Speaker 00: Because we have a situation where we've got software, and we don't have any restrictions on how to implement that software. [00:12:55] Speaker 00: And just like in that case, where we weren't going to limit what the definition of a program was, I don't think that we should limit what a controlling entity can or cannot do in the context of a broadest reasonable interpretation. [00:13:06] Speaker 03: OK, you're in your rebuttal time. [00:13:07] Speaker 03: Do you want to save it? [00:13:08] Speaker 00: Thank you, Your Honor. [00:13:09] Speaker 00: I'll reserve the remaining time for reflection. [00:13:13] Speaker 03: Mr. Murphy? [00:13:31] Speaker 04: May it please the court? [00:13:34] Speaker 04: This is John Murphy on behalf of Patent Owner. [00:13:36] Speaker 04: First, I'd like to address opposing counsel's argument that Judge Taranto that you brought up, we believe that this construction is a broad but reasonable construction. [00:13:50] Speaker 03: What does component mean in the context of software? [00:13:56] Speaker 03: I mean, we're not talking about physical items. [00:13:59] Speaker 03: And we have this reference to unit or entity. [00:14:02] Speaker 03: What does that mean in the context of software? [00:14:04] Speaker 04: The board actually clarified what that meant in their final decision at appendix A and nine. [00:14:12] Speaker 04: The board found that the diverting step has to be performed by something other than the controlling entity. [00:14:20] Speaker 03: But what does that mean? [00:14:21] Speaker 03: It can be anything, Your Honor. [00:14:22] Speaker 03: They're talking about software programs, right? [00:14:24] Speaker 03: Correct. [00:14:25] Speaker 03: So you mean separate programs? [00:14:27] Speaker 03: What does it mean? [00:14:28] Speaker 04: It's very broad of what it means. [00:14:30] Speaker 04: I think the board was trying to point out that, please point to anything else other than what you're alleging to be the controlling entity. [00:14:37] Speaker 03: Well, they said they did. [00:14:38] Speaker 03: They said that in DeVille, different parts of, I guess, of the program performed the two different functions. [00:14:47] Speaker 04: Respectfully, Your Honor, the board never found that all the characterizations done in the prior art were done as, and the characterization as, [00:14:57] Speaker 04: petitioner argued such and such, and the board came back and found, we do not agree, we agree with patent owner. [00:15:04] Speaker 03: The board never made it. [00:15:05] Speaker 03: Well, I'll tell you what my problem is. [00:15:08] Speaker 03: You know, the claim, particularly the claims 24 and so on, talk about a unit, talk about an entity, sounds like something physically separate, and the board talked about it in the same way, but that doesn't really make much sense in this context. [00:15:25] Speaker 03: We're talking about [00:15:27] Speaker 03: software. [00:15:28] Speaker 03: If they'd said, well, it has to be separate software programs or something like that, I could understand that. [00:15:34] Speaker 03: But I'm not sure that I understand what the board was saying when it talked about separate components. [00:15:41] Speaker 04: Yes, sure. [00:15:42] Speaker 04: I think that's why it's important to look at their clarification on Appendix IX, their final decision. [00:15:49] Speaker 04: We're going through the claim language as to what it means to be separate components. [00:15:55] Speaker 04: They said, anything that indicates that the diverting step is performed by something other than the controlling entity. [00:16:02] Speaker 04: So they're acknowledging that, the components. [00:16:06] Speaker 01: Where on this? [00:16:07] Speaker 04: It's about midway through the paragraph. [00:16:10] Speaker 04: If you'll see footnote three, the next sentence after that. [00:16:13] Speaker 01: What page is that? [00:16:14] Speaker 04: On appendix nine. [00:16:15] Speaker 04: Nine. [00:16:17] Speaker 01: The diverting step is performed by something other than the controlling entity. [00:16:21] Speaker 01: But then I think, [00:16:24] Speaker 01: Mr. Nash pointed to page 11, in particular the bottom of 11, and can carry over to the top of 12, where the board is, I think, really no longer so much doing claim construction as it is now applying it to Daviera. [00:16:41] Speaker 04: Yes, Your Honor. [00:16:44] Speaker 01: And says, petitioner says, if you look at Daviera, there are different instructions in this isolator engine. [00:16:54] Speaker 01: And the board says, well, they really haven't shown why those constitute separate components. [00:17:02] Speaker 01: Why not? [00:17:06] Speaker 04: First, I would like to again reiterate, I don't think the board ever made a factual finding that Diavara's isolator engine ever did as close as functionality. [00:17:16] Speaker 04: They were characterizing as to how Petitioner argued it, and they still said that wasn't enough. [00:17:22] Speaker 04: As to the way actually Diavara works, you have to go back and [00:17:25] Speaker 04: understand how it works. [00:17:26] Speaker 04: They're alleging that the diverting step is the intercepting step. [00:17:32] Speaker 04: But to understand how these references work, they do vague analysis as to what that means. [00:17:39] Speaker 04: And the way Diavara works is when you turn the program on, all messages are always predestined to get to the isolator engine. [00:17:47] Speaker 03: But the board didn't make any finding that the isolator engine didn't perform the diverting step, right? [00:17:57] Speaker 04: I think they did, Your Honor. [00:17:58] Speaker 04: Where did they do that? [00:18:21] Speaker 04: Appendix A. [00:18:25] Speaker 04: The board found that Patent Owner argues... Eight. [00:18:30] Speaker 04: Eight. [00:18:32] Speaker 04: Yes, eight. [00:18:36] Speaker 04: Patent Owner argues that petitioner does not show that Diavara discloses a separate component for the diverting limitation on the challenge claims. [00:18:44] Speaker 04: We agree with Patent Owner. [00:18:46] Speaker 03: But that's not the same thing as saying that the isolator engine doesn't perform the diverting step. [00:18:56] Speaker 04: Okay, I mean, I guess the record's unclear as to whether or not the board ever found that a diverting step was or was not disclosed. [00:19:08] Speaker 04: Right. [00:19:08] Speaker 04: It seems like they took our argument. [00:19:09] Speaker 04: Our argument, our brief, was just please, you know, petition or point to anything in the prior references that you can allege is a diverting unit or anything that you can point to that performs at a varying step. [00:19:23] Speaker 04: And they can never point to anything. [00:19:25] Speaker 03: What did you argue before the board constituted a separate unit or an entity or a separate component? [00:19:34] Speaker 03: How did you describe that to the board? [00:19:37] Speaker 04: We described it as, which is kind of how I reiterated it, as please point to anything. [00:19:43] Speaker 03: Well, in other words, you didn't give them a definition. [00:19:46] Speaker 04: We provided a plain meaning interpretation of the Klamm language. [00:19:50] Speaker 04: Which was what? [00:19:55] Speaker 04: After the messages are sent from the application program, there's an intervening step. [00:20:02] Speaker 04: You have to divert a message on the messages sent from the application program to a controlling entity. [00:20:09] Speaker 04: And the claim language itself has distinctions in there as to the diverting step has to be to a controlling entity. [00:20:17] Speaker 04: And once a controlling entity gets the message, it then controls in the controlling entity. [00:20:24] Speaker 04: So we argued, similar to what the board found, that there has to be separate components. [00:20:29] Speaker 04: There has to be something that diverts a message, an intervening step, before the message is ever received by the controlling entity. [00:20:39] Speaker 03: Well, in other words, it sounds to me as though you presented it as though we were talking about two physically separate things, which is a very unsophisticated way of looking at this now. [00:20:50] Speaker 04: No, Your Honor. [00:20:51] Speaker 04: We never try to limit the structure [00:20:53] Speaker 04: We said it can be anything. [00:20:55] Speaker 04: Please point to anything. [00:20:56] Speaker 04: We challenged the petitioner to do that after we laid out our plain meaning of the claims. [00:21:00] Speaker 04: And they were never able to point to anything in Diavera or Calder. [00:21:04] Speaker 03: Well, they said they pointed that the Vila had separate parts that did the diverting and did the controlling. [00:21:14] Speaker 04: The factual record, they never point to anything. [00:21:16] Speaker 04: They just, quote unquote, said it intercepts. [00:21:19] Speaker 04: That's the diverting step. [00:21:21] Speaker 04: But as I described earlier, the intercepting actually occurs. [00:21:24] Speaker 04: It's a predestined thing. [00:21:26] Speaker 04: There's nothing in either of the references that have something inside that logical box that actually diverts it to what they allege is the controlling entity. [00:21:37] Speaker 04: The diverting in these things, there is no diversion. [00:21:40] Speaker 04: The messages are always preordained to get to what they're alleging the controlling entity is. [00:21:46] Speaker 04: There's no intermediary step anywhere along the way that can ever change the course of that message. [00:21:51] Speaker 04: And they were never able to point to anything to allege that. [00:21:55] Speaker 04: They relied on inherency, but then they never, they made a conclusive allegation about inherency, but they never followed up with, it necessarily includes under the proper, you know, under the proper law. [00:22:06] Speaker 04: Then they allege obviousness, but they never allege obviousness towards this limitation. [00:22:10] Speaker 04: Throughout the case, they were never able to point to anything. [00:22:13] Speaker 04: And they never made like the proper foundation, either under inherency or obviousness, that these were ever disclosed in the references. [00:22:31] Speaker 04: Just so I let off this, I do want to agree with Judge Taranto where I think this is a broad but reasonable interpretation. [00:22:37] Speaker 04: The board's not trying to limit the structure of physical locations. [00:22:41] Speaker 04: The board's saying, you know, the Vernon unit could be, you know, they go through the different embodiments and specification. [00:22:47] Speaker 04: It could be an SIP protocol stack. [00:22:48] Speaker 04: It could be minoware. [00:22:51] Speaker 04: It could be anything. [00:22:51] Speaker 04: It's not limited to a physical structure. [00:22:59] Speaker 02: What's your argument on the waiver issue? [00:23:02] Speaker 02: Are you still? [00:23:04] Speaker 04: Yes, we have. [00:23:05] Speaker 04: I'm sorry. [00:23:07] Speaker 04: Go ahead. [00:23:11] Speaker 04: Kind of have a waterfall approach on this issue. [00:23:14] Speaker 04: The first waiver issue we have is that the board determined that they may express finding that they did not interpret the claims expressly. [00:23:23] Speaker 04: So we believe this is an issue of claim application rather than claim construction. [00:23:30] Speaker 04: Therefore, it should be reviewed under substantial [00:23:32] Speaker 04: evidence. [00:23:34] Speaker 04: The first time that appellants tried to address this issue to say that that finding by the board was incorrect was in the reply brief. [00:23:42] Speaker 04: So based on those new arguments, we think that they waive this issue just as to whether or not it's claim construction issued in OVA or it's claim application. [00:23:54] Speaker 04: The second argument I have regarding waiver is [00:23:58] Speaker 04: whether or not they actually waived the argument to challenge the claim construction, assuming they get that far. [00:24:05] Speaker 04: And they never presented a formal claim construction. [00:24:07] Speaker 04: The only time they ever presented anything was they cited in the abstract the two cases. [00:24:17] Speaker 04: And they said that those stand for the proposition that any claims agnostic to the claims at issue could read on the same component. [00:24:29] Speaker 04: And then when they actually started up, then they never looked at the claim language. [00:24:33] Speaker 04: They never looked at the specification. [00:24:34] Speaker 04: And they also did a claim application instead of a claim construction. [00:24:40] Speaker 04: They applied the plain meaning of the claim to the prior references. [00:24:47] Speaker 04: So we don't think, one, we think they waived their argument for plain construction because we made a very strong, you know, ordinary, what the plain meaning of the claims was in our response and underlying proceeding. [00:24:59] Speaker 04: They never rebutted that analysis. [00:25:03] Speaker 04: They never did any type of client construction. [00:25:06] Speaker 04: And so at this point, we think it's too late for them to first raise this issue on appeal. [00:25:12] Speaker 01: What do you say in response to the kind of common sense notion, which I think Mr. Nash raised, that at least as a matter of normal English outside the computer context, you can talk about diverting something to yourself [00:25:30] Speaker 01: like money that doesn't belong to you. [00:25:34] Speaker 04: I think in the context of the claim language itself, the plain meaning, they introduce separate elements. [00:25:41] Speaker 04: Diverting a message to a controlling entity. [00:25:45] Speaker 04: And then later it says controlling the message in the controlling entity. [00:25:50] Speaker 04: If it was intended to be able to divert something to yourself, it would be within or in. [00:25:57] Speaker 04: But diverting to implies that there [00:26:00] Speaker 04: is something that's different than what you're diverting to. [00:26:05] Speaker 04: I think just based on grammatical interpretation, the fact that there's different elements introduced to a controlling entity, that that has to happen before it ever gets to the controlling entity. [00:26:24] Speaker 04: And for that, the specification indeed is consistent with that interpretation. [00:26:29] Speaker 04: they introduce the fact that there are these SIP protocol stacks and that there is metalware. [00:26:34] Speaker 01: I guess just to pursue the point, just one more step. [00:26:40] Speaker 01: The same person can take two actions in sequence so that when it says the activity of diverting has to occur before the activity of controlling, [00:26:54] Speaker 01: At least, again, outside the context of this patent, it seems to me that does not necessarily imply that the diverter and the controller are necessarily different. [00:27:09] Speaker 01: Just that the activities have to proceed in sequence. [00:27:12] Speaker 04: I mean, agnostic of the claims, I guess you'd have a point. [00:27:16] Speaker 04: But if you look at the claim language, they introduce, you know, in the method step, there's a whole separate element. [00:27:23] Speaker 04: of diverting to the controlling entity. [00:27:27] Speaker 04: And then 24, you know, they introduce the two different concepts of, they call something a diverting unit. [00:27:34] Speaker 04: Its responsibility is to divert to a controlling entity. [00:27:38] Speaker 04: And so, on its face, I mean, you would be rendering a lot of the claim language, you know, meaningless if you interpret those as conflating those two together. [00:27:56] Speaker 04: Right, Your Honor. [00:27:57] Speaker 04: It's a lot of time, so if you'd like any other questions, or else I'm going to pass the case. [00:28:02] Speaker 03: OK. [00:28:02] Speaker 03: Thank you, Mr. Murphy. [00:28:03] Speaker 03: All right. [00:28:03] Speaker 03: Thank you. [00:28:08] Speaker 03: Mr. Nash, you've got about two minutes. [00:28:15] Speaker 00: Thank you, Your Honor. [00:28:16] Speaker 00: I'd like to address just a few brief points. [00:28:19] Speaker 00: With respect to waiver, I'm not certain what constitutes a waiver here. [00:28:23] Speaker 00: We've been arguing a consistent construction throughout the case. [00:28:27] Speaker 00: So in the context of our petition, we pointed to isolator engine 225 of the Diavera reference. [00:28:33] Speaker 00: And you can see that at joint appendix pages 264 to 266. [00:28:35] Speaker 00: To the extent there was any doubt, we made that clear in the context of our reply. [00:28:41] Speaker 00: So you see at both pages 571 and 572, and other pages in that reply like 569, we expressly state repeatedly that our understanding of the claims is one that would not preclude [00:28:54] Speaker 00: the controlling entity from doing both diverting and controlling. [00:28:57] Speaker 00: So we have an express statement, for example, at 571, the language of claim one does not preclude the same structure from performing the diverting step and the controlling step. [00:29:07] Speaker 00: So we made that argument in our petition, then our, our reply. [00:29:11] Speaker 00: It also came up at the hearing. [00:29:12] Speaker 00: So, for example, at the transcript, page 687 of the joint appendix, you'll see that we talked about their, that as well. [00:29:19] Speaker 00: So I'm not sure what would constitute waiver there. [00:29:21] Speaker 00: We've been arguing for the same construction from the beginning of this case. [00:29:27] Speaker 00: Council closed by saying that the claims would be rendered meaningless, I guess, under this construction. [00:29:33] Speaker 00: I don't think that that's true. [00:29:34] Speaker 00: There's certainly a separation in functions. [00:29:36] Speaker 00: There has to be two separate functions that are undertaken. [00:29:40] Speaker 00: There's diverting and then controlling. [00:29:44] Speaker 00: But particularly in the context of method claim one, [00:29:47] Speaker 00: There's nothing that precludes what's doing the diverting. [00:29:50] Speaker 00: So that could be done by the controlling entity. [00:29:52] Speaker 00: And then with respect to claim 24, there's nothing about the claim language that would be rendered meaningless by allowing the controlling entity to include a diverting unit. [00:30:02] Speaker 00: That would be a part of the controlling entity that does the diverting. [00:30:05] Speaker 02: So what's the difference between a controlling entity and a diverting unit? [00:30:12] Speaker 02: In terms of SOCR, what's the difference between something [00:30:16] Speaker 02: that performs as a unit and something as an entity. [00:30:20] Speaker 00: I'm not sure there's anything that's reflected in the patent. [00:30:23] Speaker 00: It doesn't use the word entity, or it doesn't use the word unit, sorry. [00:30:27] Speaker 00: I think that they were trying to invoke sort of the common understanding of what a unit could be, which is that it could be something that stands alone, or it could be something that's a part of something else. [00:30:36] Speaker 00: So I think there was a common sense. [00:30:37] Speaker 00: I see I'm out of time now. [00:30:39] Speaker 00: Unless there's further questions. [00:30:41] Speaker 00: Thank you very much. [00:30:41] Speaker 00: OK, thank you, Mr. Chairman. [00:30:42] Speaker 03: Thank both counsel. [00:30:43] Speaker 03: The case is submitted.