[00:00:22] Speaker 04:
Okay, this case is number 161528, Intellectual Ventures II against IBM, Mr. Picard.

[00:00:32] Speaker 04:
We can emphasize the strongest, most important points, and we have in mind what you've already told us.

[00:00:40] Speaker 02:
Thank you, Your Honor.

[00:00:41] Speaker 01:
In the early argument, you suggested that Porus doesn't disclose analyzing

[00:00:50] Speaker 01:
summaries of the data that's received from the peripheral computers.

[00:00:55] Speaker 01:
And I'd like you to address that because I've read PORUS and it talks about analyzing the traffic.

[00:01:01] Speaker 01:
It isn't just receiving a conclusion from the peripheral computers, it's receiving information about the traffic and about the raw data.

[00:01:11] Speaker 02:
Maybe I wasn't clear and I apologize if I wasn't

[00:01:15] Speaker 02:
My point earlier was intended to be that the anomaly reports of porous, no evidence that they contain the raw data that was received by the distributed nodes there.

[00:01:25] Speaker 01:
But they do include summaries of the raw data so that you can determine trends and things like that, right?

[00:01:33] Speaker 02:
That's all it says.

[00:01:34] Speaker 02:
We don't know what the nature of the summaries are.

[00:01:36] Speaker 02:
And if we look... Well, but there are summaries of data, right, about the traffic.

[00:01:42] Speaker 02:
is we don't know what parts of the data are summarized and if that, in doing so, would include parts of the raw data.

[00:01:48] Speaker 01:
And I think on that point... Okay, that's a fair point, but the question is whether it has to be the raw data or whether the summaries of the raw data are within the claim.

[00:01:59] Speaker 02:
Right, that does get us back to the claim construction issue.

[00:02:02] Speaker 02:
And just on the question of what Porus discloses, I think it's significant.

[00:02:05] Speaker 02:
We have said to this court in our blue brief that if we are right about

[00:02:10] Speaker 02:
the claim construction requiring the raw data, that the proper remedy in the IBM appeal is reversal because there's no substantial evidence that the anomaly reports, of course, include the raw data.

[00:02:23] Speaker 02:
And I don't believe IBM has disputed that.

[00:02:26] Speaker 02:
So I will turn to, I think, the key issue there.

[00:02:29] Speaker 02:
And that is claim construction.

[00:02:30] Speaker 02:
And we only have one claim construction issue in the IBM case.

[00:02:33] Speaker 02:
And it is, as Judge DeRonto articulated it upfront, the question of what's sent from the distributed

[00:02:40] Speaker 02:
modules of the network, whether they have to include the raw data or simply whether the summaries would be sufficient.

[00:02:49] Speaker 02:
And I don't want to repeat myself too much.

[00:02:52] Speaker 02:
I've made my points about the claim language itself.

[00:02:54] Speaker 02:
I would like to turn to the specification.

[00:02:58] Speaker 02:
There's been reliance by the board and again by IBM and its blue brief on a disclosure in the 08-4 patent.

[00:03:09] Speaker 02:
looking specifically at column seven, line 45, where it says it should be noted that certain devices can be used as sensors to sense data, traffic, and pass their findings onto the data collection and processing center or other central processing system and so on in the board.

[00:03:27] Speaker 02:
And IBM has pointed to that to say, well, look, the specification discloses that these sensors pass findings, and therefore, that's within the scope of the claim.

[00:03:35] Speaker 02:
Again, I think if we look at the prosecution history,

[00:03:38] Speaker 02:
What's claimed here versus what's described here are different?

[00:03:41] Speaker 00:
What was going on in Rowland?

[00:03:43] Speaker 00:
I think there was some discussion 10 minutes ago about how in Rowland, the host doesn't send anything up to anybody else, whether the anything is the data that it analyzed and found to be problematic or a report of the problematic nature of it.

[00:04:06] Speaker 00:
The prosecution history doesn't reveal... Well, doesn't that make it pretty hard then to say that the point of the distinction was, as I take it, your point is that you say the distinction had to do with what was being forwarded.

[00:04:23] Speaker 00:
Report only or result only report versus results plus some data.

[00:04:30] Speaker 00:
And that just doesn't appear on the face of, what is it, page 463.

[00:04:34] Speaker 02:
I think that's right.

[00:04:36] Speaker 02:
Column 10, there's a description of Figure 5 I think may help the issue.

[00:04:39] Speaker 00:
Of the 084?

[00:04:40] Speaker 02:
Of the 084, I'm sorry, yes.

[00:04:44] Speaker 02:
So Figure 5 has a flowchart of an exemplary intrusion detection method, and here I think it's explaining what's going on with the sensors that are described in 7, and all that's happening is that the data collected and otherwise received at the data collection and processing center, and so the sensors have sent the data to the

[00:05:06] Speaker 02:
data collection and processing center as shown in Figure 5, there's nothing in the claims to say that the sensors can't make independent findings, they're open-ended claims, and the specification as a whole is consistent that what's happening is network traffic itself is being forwarded to the data collection and processing center.

[00:05:25] Speaker 00:
Except for that column 7, line 45, and I take it, I guess my recollection, tell me if I'm wrong, that what you say about that sentence

[00:05:35] Speaker 00:
about the sensors out on some nodes of the network is that it's just an unclaimed embodiment.

[00:05:44] Speaker 00:
But to say that that's the only way to understand that sentence is already to conclude that the language of the claim analyzed the data cannot, under any reasonable ordinary language understanding,

[00:05:59] Speaker 00:
include indirect analysis of the data by being given information about the data rather than the data itself.

[00:06:07] Speaker 00:
Otherwise, without that, why not read that sentence as, in fact, covered by the claim as opposed to an unclaimed embodiment?

[00:06:17] Speaker 02:
I think it's the inclusion of the claim term, analyzing data entering the plurality of host sites.

[00:06:24] Speaker 00:
Indirect analysis, if that's a thing,

[00:06:28] Speaker 00:
includes analyzing something that you don't see directly, which is the data entering at the nodes.

[00:06:37] Speaker 02:
Respectfully, our position is that the claim term is not directed to the indirect method, that analyzing data entry means analyzing the data itself, not data about the data.

[00:06:53] Speaker 02:
As I said before, because we're right about the claim construction for this term, we should prevail in the IBM appeal because there's no dispute, at least raised below or even here in this appeal, that the PORUS reference has that direct method where data itself are analyzed by the enterprise layer level.

[00:07:11] Speaker 02:
Unless this panel has further questions, I'll reserve the rest of my time for rebuttal.

[00:07:29] Speaker 04:
Proceed, Mr. Merkin.

[00:07:31] Speaker 03:
Thank you.

[00:07:32] Speaker 03:
Good morning, Your Honors.

[00:07:34] Speaker 03:
May it please the court, Joel Merkin on behalf of IBM.

[00:07:37] Speaker 03:
I want to jump straight to the claim instruction issue, the one issue in the IBM case here, and particularly go to the claim language of claim 26.

[00:07:49] Speaker 03:
I know this has been discussed, but I really think that the threshold issue here, just like the first question that was asked to IB's counsel of the day, is does claim 26 encompass

[00:08:04] Speaker 03:
indirect analysis of data, even data entering the network.

[00:08:09] Speaker 03:
And the answer to that is yes.

[00:08:11] Speaker 03:
There's nothing in claim 26 that requires direct analysis of the data that's entering the network.

[00:08:20] Speaker 03:
It simply says that the data collection and processing center analyzes the data entering the network.

[00:08:28] Speaker 03:
So whether it does it directly or whether it does it indirectly via reports and analysis results,

[00:08:34] Speaker 03:
Either way, it's covered by what Porus discloses.

[00:08:39] Speaker 01:
I'm not sure that you have to argue at that broadly because in the hypothetical that I gave earlier, if all you got from the peripheral computer was a statement that an anomaly has been detected and that's all that was forwarded to the central computer, I think that would be a serious question as to whether that was covered by the claims.

[00:09:00] Speaker 01:
It's not that level of

[00:09:03] Speaker 01:
conclusory statement that gets forwarded.

[00:09:07] Speaker 01:
It's much more information than that under PORUS.

[00:09:11] Speaker 01:
They get information about traffic patterns and things like that.

[00:09:15] Speaker 01:
In other words, there's a lot of information that really is data about what's happening.

[00:09:20] Speaker 01:
It's not just conclusions.

[00:09:22] Speaker 01:
That's exactly correct.

[00:09:23] Speaker 03:
And PORUS does have this disclosure of summaries of the

[00:09:28] Speaker 03:
TCPIP packets that are being forwarded on.

[00:09:31] Speaker 03:
They're called activity reports.

[00:09:34] Speaker 03:
So it's reports about the activity.

[00:09:36] Speaker 03:
They're analysis results, anomaly reports.

[00:09:40] Speaker 03:
This is all described by PORUS as being within the reports that are then sent up to the enterprise layer monitor.

[00:09:48] Speaker 03:
And so that is present in PORUS.

[00:09:51] Speaker 00:
What are some of the specific pieces of information sent up to the

[00:09:57] Speaker 00:
What is it, by the surveillance monitor to the enterprise monitor?

[00:10:01] Speaker 03:
Right, so it doesn't in PORUS go through the details of what would be exactly in the report, but these are reports that are analyzed in the activity from the TCPIP packets.

[00:10:13] Speaker 03:
And so it's things like the time that the data, the TCPIP packets entered the network, activities, summaries of what those TCPIP packets were.

[00:10:25] Speaker 03:
So for example, if there was

[00:10:26] Speaker 00:
He said time, that's one concrete thing.

[00:10:29] Speaker 00:
Give me a couple of other concrete pieces of information.

[00:10:32] Speaker 03:
Sure.

[00:10:33] Speaker 03:
The source, where it came from and the destination, where it went to.

[00:10:37] Speaker 03:
So if, for instance, if there was a virus being sent to a particular node within the domain or some command... Different from the node that is doing the reporting, otherwise it's sort of inherent in...

[00:10:54] Speaker 03:
That's correct.

[00:10:55] Speaker 03:
Different, because the node that's doing the reporting is this.

[00:10:57] Speaker 03:
Could be forwarding it to something else.

[00:10:59] Speaker 03:
That's right.

[00:11:00] Speaker 03:
It's also that's the surveillance monitor that's doing the reporting.

[00:11:04] Speaker 03:
I see.

[00:11:04] Speaker 03:
And so the TCP could be coming to another network device.

[00:11:11] Speaker 03:
And so really, IV's position on the claim construction, they're really reading in two separate types of limitations into claim 26.

[00:11:20] Speaker 03:
It's both how the data is analyzed,

[00:11:23] Speaker 03:
And they've used the language in their briefing that it must be analyzed firsthand or must be directly.

[00:11:29] Speaker 03:
Neither of those terms are in the claim language.

[00:11:31] Speaker 03:
And then there's also, separately from that, the notion of what is being analyzed.

[00:11:36] Speaker 03:
And there is where IV argues it must be the raw data that's being analyzed.

[00:11:43] Speaker 03:
The data packets or in their appeal briefing, they started using the terminology, the network traffic that must be analyzed.

[00:11:51] Speaker 03:
Both of these limitations that they're

[00:11:53] Speaker 03:
reading into claim 26 aren't present in the claim language itself.

[00:12:00] Speaker 03:
And so you get to the threshold issue of if claim 26 does not require direct analysis of the data, then regardless of whether it's data packets, the TCPIP packets that's entering the network, or whether it's reports, under either case you have

[00:12:23] Speaker 03:
analysis of the data and that's what's claimed.

[00:12:33] Speaker 03:
What IV tries to argue, because the plain claim language of claim 26 doesn't support their interpretation, they then turn to the specification and you heard the argument that the specification discloses allegedly a specific embodiment that is unclaimed.

[00:12:53] Speaker 03:
That is incorrect for two separate reasons.

[00:12:57] Speaker 03:
One is that the claim language doesn't actually claim the alleged embodiment that they're describing as disclosed in the spec.

[00:13:07] Speaker 03:
And secondly, the specification doesn't even describe what they're describing as a second embodiment, as a second embodiment.

[00:13:15] Speaker 03:
This is all described where it's the censors passing the findings up to the higher level

[00:13:23] Speaker 03:
monitors, that's all described within column seven of the 084 patent, which is all in relation to figure two, which is described as the embodiment of the present invention.

[00:13:35] Speaker 03:
And so even this notion that there's separate embodiments and it's only claiming one embodiment, that's just not supported by the evidence.

[00:13:45] Speaker 03:
We also heard from IV an argument that the prosecution history

[00:13:51] Speaker 03:
supports reading in these elements into the claims.

[00:13:55] Speaker 03:
And I agree with Commerce's counsel earlier.

[00:13:58] Speaker 03:
The record in this case doesn't support that the prosecution history demands that these elements be read in.

[00:14:06] Speaker 03:
As an initial matter, Claim 26, which is the claim at issue in this appeal, isn't amended in that piece of file history.

[00:14:18] Speaker 03:
And then the discussion about the Rowan

[00:14:21] Speaker 03:
reference doesn't actually support that there are, that it must analyze data directly or firsthand.

[00:14:32] Speaker 03:
That discussion simply talks about analyzing data from multiple hosts.

[00:14:37] Speaker 03:
And so this is described in page 25 and 26, footnote four of IBM's red brief where we address the file history and how it doesn't support

[00:14:49] Speaker 03:
reading in these elements to the claim.

[00:14:59] Speaker 03:
I'm going to also address the notion that if you do decide to read into the Claim 26, these elements shouldn't be read in, but that IV has said that the court should reverse

[00:15:19] Speaker 03:
the PTABs order, and that's incorrect.

[00:15:22] Speaker 03:
There actually is evidence in the record of actual data packets, TCPIP packets, being sent up.

[00:15:31] Speaker 03:
So at the very least, it would need to be vacated back to the PTAB to make a factual determination.

[00:15:39] Speaker 00:
Can I just clarify one thing?

[00:15:41] Speaker 00:
The prosecution history where the language of claim one was added, that's at issue.

[00:15:47] Speaker 00:
includes the addition of Claim 26 containing much the same language.

[00:15:56] Speaker 00:
So if that language said what or meant what they said it said, really would it not be relevant to Claim 26?

[00:16:06] Speaker 03:
You are correct.

[00:16:06] Speaker 03:
I'm looking at Appendix 1060 Claim 26 is described as new.

[00:16:11] Speaker 03:
It's similar to the language that's being amended in the earlier claims, but it's not

[00:16:17] Speaker 03:
the exact same language.

[00:16:19] Speaker 03:
Still, if you look at the comments, Appendix 1063, there's no notion in that description there that what is being amended there is a first-hand or a direct analysis of TCPIP packets.

[00:16:35] Speaker 03:
That's just not present.

[00:16:43] Speaker 03:
There are no more questions from the panel.

[00:16:46] Speaker 03:
I will take a seat with time remaining.

[00:16:48] Speaker 04:
No, I think we're fine.

[00:16:49] Speaker 04:
We'll save you rebuttal time as well.

[00:16:52] Speaker 04:
We'll see what Mr. Picard has to say.

[00:16:54] Speaker 04:
Thank you.

[00:16:55] Speaker 04:
Well, I guess you don't have rebuttal time.

[00:16:57] Speaker 04:
We'll still hear what Mr. Picard has to say.

[00:17:01] Speaker 02:
I'll give this very short last one side about the claim construction.

[00:17:04] Speaker 02:
I just want to touch on the remedy question.

[00:17:06] Speaker 02:
IBM did not argue below that under

[00:17:10] Speaker 02:
the construction proffered by intellectual ventures before the board that they had a winning position, and they haven't contested that in their brief here.

[00:17:18] Speaker 02:
And I think if we look at the final written decision, it's significant that the board didn't, for example, make any findings about what's contained in the anomaly reports of porous along the lines that my colleague has suggested to the board today.

[00:17:34] Speaker 02:
So I just wanted to make that point.

[00:17:38] Speaker 04:
Thank you.

[00:17:39] Speaker 04:
Thank you both.

[00:17:40] Speaker 04:
These two cases now are taken under submission.