[00:00:37] Speaker 03:
17-13-13 Arista Networks Incorporated against Cisco Systems Incorporated.

[00:00:44] Speaker 03:
Ms.

[00:00:44] Speaker 03:
Degen.

[00:00:45] Speaker 00:
May I please support Lauren Degen for Arista.

[00:00:49] Speaker 00:
The board in this case failed to apply its full play construction and so doing erred in finding that the claims that recite the tunneling limitation were not shown to be unpatentable.

[00:01:00] Speaker 00:
The board's construction of tunneling importantly has two facets.

[00:01:05] Speaker 00:
The first part of it was

[00:01:07] Speaker 00:
Tunneling means transmitting a frame without examination, including in layer two and layer three communications.

[00:01:14] Speaker 00:
But importantly, in the claim construction analysis, the board explained what it understood examination to mean in the context of the 2.11 patent.

[00:01:23] Speaker 00:
It explained that given the disclosure of an embodiment, as well as dependent claim 11, that tunneling, excuse me, that encapsulation and de-encapsulation of a frame

[00:01:36] Speaker 00:
are not considered to be examination of the frame as the 211 patent uses that term.

[00:01:42] Speaker 00:
And in particular, the board explained that the claim 11 defines tunneling to comprise encapsulating the frame, transmitting the frame, de-encapsulating the frame, and then directly transmitting the frame, and says overtly that red

[00:02:01] Speaker 00:
in light of the express definition and the specification, these actions, these four actions, do not consider examination.

[00:02:09] Speaker 00:
And so when the board then turned to look at the kunstings or a reference, it needed to do two-step process.

[00:02:15] Speaker 00:
It first needed to look to see if there was examination, and if it found some examination, it needed to go on and determine was that examination part and parcel of an encapsulation and de-encapsulation process

[00:02:30] Speaker 00:
And the board simply stopped its analysis without doing that part of the claim construction, did nothing, no finding.

[00:02:37] Speaker 00:
And that's on Appendix 25.

[00:02:41] Speaker 00:
By not applying its construction, the second part of it, the board overlooked and made no findings whatsoever about how, in Kunzinger, which discloses using IPSEC tunneling encapsulation,

[00:02:56] Speaker 00:
and made no findings about whether when Conceiver teaches that the outer, what's called the outer header is examined, whether that examination is part of encapsulation.

[00:03:07] Speaker 00:
And the record, in fact, is very clear that the IPSec protocol does, in fact, add two headers.

[00:03:15] Speaker 00:
It adds an IPSec header, and then there's an outer frame header that is added.

[00:03:19] Speaker 00:
And it's those added headers, which are added as part of encapsulation, that are looked at.

[00:03:25] Speaker 00:
And importantly, what's not looked at

[00:03:27] Speaker 00:
is the now encapsulated packet or frame inside.

[00:03:31] Speaker 02:
The original... And looking at this and digging down into it, I thought that maybe Kinserger, when we looked at that outer packet, was determining whether to go from the start of a tunnel to the end of a tunnel.

[00:03:50] Speaker 02:
Am I correct in understanding that when it does the

[00:03:54] Speaker 02:
In the encapsulation, decapsulation, it looks at that outer packet, which is clear.

[00:04:00] Speaker 02:
Is it the forwarding decision, if you will, that's being made there in Kunziger is looking at the beginning of the tunnel and the end of the tunnel?

[00:04:08] Speaker 02:
Am I correct in understanding that?

[00:04:09] Speaker 00:
I think that's right, Your Honor.

[00:04:10] Speaker 00:
That the entire looking of where to send that packet is to get it from one end of the tunnel to the end.

[00:04:16] Speaker 02:
On the other hand, in the patented suit, what's happening there when it looks at that

[00:04:23] Speaker 02:
in the encapsulation, decapsulation, is that it's just looking at what port to set it to, which is, I believe, either the start or the start of the tunnel.

[00:04:34] Speaker 02:
Am I correct in understanding that?

[00:04:36] Speaker 00:
I think that's not quite right, Your Honor.

[00:04:38] Speaker 00:
And so the tag that we look at in terms of figure four is really the best figure to kind of understand where the tunnel actually lives.

[00:04:46] Speaker 00:
So this is in the 211 pen?

[00:04:48] Speaker 00:
Yes, Your Honor.

[00:04:48] Speaker 00:
It's appendix, I believe, 33.

[00:04:50] Speaker 00:
Excuse me, appendix 32.

[00:04:54] Speaker 00:
And so the tunneling that happens through the bridge in the 211 patent starts from the upper right-hand side where the packet comes in at the inter-bridge link.

[00:05:07] Speaker 00:
And that tunnel goes then through the entire bridge and out through, say, for example, port five or six.

[00:05:19] Speaker 00:
And importantly, the port 5 is the beginning of a land segment.

[00:05:26] Speaker 00:
And so when the packet comes in through the interlink bridge and the bridge internet port 412 examines the tag, it figures out, well, what is the subport?

[00:05:39] Speaker 00:
And when it determines the subport, it knows exactly what land segment it will send the packet out.

[00:05:44] Speaker 00:
So that examination of the tag 506

[00:05:47] Speaker 00:
is for forwarding purposes.

[00:05:49] Speaker 00:
It's for the precise purpose of figuring out what land segment, i.e.

[00:05:53] Speaker 00:
the one that's connected to Port 5, the packet should be forwarded on.

[00:05:57] Speaker 00:
In terms of where's the tunnel, the tunnel is within, the beginning of the tunnel is at the beginning of the bridge.

[00:06:05] Speaker 00:
When it comes into the bridge, Bridge Interconnect Port 416 is tunneled through and exits at Port 5 into the land segment.

[00:06:16] Speaker 02:
Okay.

[00:06:16] Speaker 02:
And as I understand your adversary's position, they're saying that there's not forwarding going on because the element bridge forwarding engine 406 is not being used for the tunneling.

[00:06:30] Speaker 00:
So, I mean, so I think there is some confusion about how does bridge forwarding engine 406 play in here.

[00:06:36] Speaker 00:
That is for regular old forwarding.

[00:06:38] Speaker 00:
And so something that's not tunneled, you would absolutely look at the header and decide what land segment would go out.

[00:06:46] Speaker 00:
It could go any number of places into the network.

[00:06:49] Speaker 00:
But importantly, the bridge at issue is doing the work.

[00:06:54] Speaker 00:
It knows where to send that packet.

[00:06:56] Speaker 00:
And it knows that packet by looking at the regular header it would do ordinarily in terms of regular old forwarding, not the tunneling that we're talking about with respect to the use of the text.

[00:07:17] Speaker 00:
And I thought what might be helpful, Your Honors, is this portion in column five that talks about this definition of forwarding without examination and how it really fits into the rest of the patent.

[00:07:32] Speaker 00:
If you look shortly above, that definition starts at roughly line 59 of column five, but right above it, around line 55 in the patent, it explains how

[00:07:46] Speaker 00:
you have this pass-through path that we were just talking about from, you know, from where the packet enters on the upper right-hand side, the pass-through path from Subpoint A 99.0 all the way down to Port 0.

[00:08:00] Speaker 00:
It talks about this pass-through path, and then it says it's described in greater detail below.

[00:08:05] Speaker 00:
And then it explains how when you're sending packets from Subport A 99 to Subport A, it's done without any examination by the bridge.

[00:08:16] Speaker 00:
But as we look into the patent, and we see how this, what is described below is exactly this configuration in column 10, starting at around lines 29, about how we are configuring to know that subport four is mapped directly to subport, to actually port five, which is the exit.

[00:08:37] Speaker 00:
It maps it directly to a land segment as part of the configuration, and the only way that the bridge knows how to get the packet

[00:08:45] Speaker 00:
to the appropriate port 5 is by examining the tag.

[00:08:49] Speaker 00:
The tag tells us you should use subport 4.

[00:08:52] Speaker 00:
For example, in column 9 around line 29 as well in column 11 around line 20, the patent tells us if you need to learn what land segment a packet that is tunneled is going to go to, you need to read the tag.

[00:09:10] Speaker 00:
This tag was added by encapsulation.

[00:09:12] Speaker 00:
You read it.

[00:09:13] Speaker 00:
And then you make a forwarding decision to that land segment based on what information you find in the tag.

[00:09:20] Speaker 00:
And that is remarkably similar to what we see in Kunzinger, because you look at the outer IPsec header in order to figure out where you're going to send the friend.

[00:09:30] Speaker 02:
Can you walk us through Kunzinger in the same way you just did with the 211 patent?

[00:09:35] Speaker 02:
I would be happy to.

[00:09:37] Speaker 00:
So Kunzinger,

[00:09:40] Speaker 00:
I think the best way to think about Kunzinger is if you look at the graphic at page 19 of our opening brief, and I'll use that because it's a little clearer, but I will map it back to the Cousinsure reference itself.

[00:09:53] Speaker 01:
Is that a figure from Kunzinger?

[00:09:55] Speaker 00:
No, that's a figure that our expert put together based on his review of Kunzinger, and I believe you can find that in the declaration itself at Appendix 6258.

[00:10:07] Speaker 00:
So just starting with that as a bigger picture, then I'll tie it back into Kunzinger.

[00:10:11] Speaker 00:
We see that this original packet is the box in the very center.

[00:10:15] Speaker 00:
That original packet has a payload, and it has the address information where the packet would need to go, for example, to the host.

[00:10:23] Speaker 00:
But because it's tunneled, that information has remained secret and encrypted.

[00:10:28] Speaker 00:
And instead, they put another header on top of it.

[00:10:30] Speaker 00:
What's shown as the other box around it is the IPsec header.

[00:10:34] Speaker 00:
And that header is used to help the packet

[00:10:37] Speaker 00:
be routed as it travels through the broader networks.

[00:10:41] Speaker 00:
On top of that is a frame header.

[00:10:42] Speaker 00:
The frame header is something that the bridge itself will look without getting too deep into the technology.

[00:10:48] Speaker 00:
The frame header is done at layer two, whereas the IPsec header is done at layer three.

[00:10:53] Speaker 00:
Once you're inside the bridge, they're using, once you're in a LAN or a local area network, you use the layer two header.

[00:11:00] Speaker 00:
And if you jump to a new local area network, you use the layer three header in order to get to where you're going.

[00:11:06] Speaker 00:
Turning to Cousins or itself, which is that appendix page 532, column 3, that explains in kind of a detail what I just tried to explain from the picture, which just talks about how tunnel packets, and this is around line 7, tunnel packets in IPsec have an outer IP header whose source and destination identify the endpoints of the tunnel.

[00:11:35] Speaker 00:
And an inner IP header, which is shown as part of the original packet in our figure, whose source and destination identify the originator and recipient of the packet.

[00:11:46] Speaker 00:
When the IPsec is used in this tunnel mode, the complete inner packet is protected and travels through the tunnel.

[00:11:53] Speaker 00:
But the outer header remains in the clear and can be used for the routing.

[00:12:00] Speaker 00:
There is a figure in Kutzinger.

[00:12:05] Speaker 00:
that shows this a little better.

[00:12:06] Speaker 00:
And that's figure four on page 523.

[00:12:10] Speaker 00:
And that's showing kind of in a crudish fashion how in element 410 and 43, these are the local area networks.

[00:12:20] Speaker 00:
And the tunnel is going right through.

[00:12:22] Speaker 00:
And that is intended to show how the inner packet, the original packet, is not looked at at all.

[00:12:28] Speaker 00:
And in order to get from one end to the tunnel to the next, you're looking at the outer, what's called the outer header, this IP

[00:12:35] Speaker 02:
Now in Kunziger, one difference I'm seeing, and tell me if I'm incorrect today, but Eid says that you're going to identify the end points of the tunnel.

[00:12:44] Speaker 02:
So you know the beginning and the end, as opposed to the patent and suit where you just know the beginning.

[00:12:51] Speaker 02:
You're just going to like node A5, for example.

[00:12:56] Speaker 00:
Well, it talks about the endpoints of the tunnel, but you make lots of hops within the network.

[00:13:00] Speaker 00:
And at each and every hop, the node at issue, whether it be a router or a switch, has to look at the top of the header.

[00:13:08] Speaker 00:
It has to look at that outer header.

[00:13:10] Speaker 00:
And so it looks at the outer header to make the forwarding decision for the next hop.

[00:13:15] Speaker 00:
Now, the claim construction doesn't say anything about, well, you can only do one hop, or you have to do three hops.

[00:13:20] Speaker 00:
The claim construction frankly says, without examination,

[00:13:24] Speaker 00:
But it's okay if you do examination as part of the encapsulation and de-encapsulation process, which is exactly what's happening in Kunzinger, exactly what's happening in the TAG.

[00:13:34] Speaker 00:
So I think our goal here is to be very clear on what the claim construction is and what the board said.

[00:13:40] Speaker 00:
And if you apply the board's construction, having these two parts, to the cousins in reference, you can help to conclude that the kind of examination that the board identified

[00:13:50] Speaker 00:
is part and parcel of encapsulation and de-encapsulation, which is adding the tag or adding the header, transmitting, looking at the header to decide your next hop, and then directly transmitting it to the next hop.

[00:14:05] Speaker 00:
And with that, I would like to try to reserve some time and lift three more questions.

[00:14:09] Speaker 00:
OK.

[00:14:09] Speaker 00:
Yes, no, let's hear from the other side.

[00:14:11] Speaker 00:
Thank you, Lisa.

[00:14:19] Speaker 03:
Let's do one of the calls.

[00:14:29] Speaker 04:
Thank you, Judge Newman, and may it please the court.

[00:14:31] Speaker 04:
I completely agree with Arista's counsel that this case ultimately turns on whether the board properly applied its full construction.

[00:14:39] Speaker 04:
The problem for Arista here is that Arista's arguments on appeal both assume that the board adopted a far different construction of tunneling than the one the board actually articulated in its opinion.

[00:14:49] Speaker 04:
The board was clear that tunneling means, quote, transmitting a frame without examination

[00:14:54] Speaker 02:
What page of the decision are you looking at?

[00:14:57] Speaker 04:
I'm looking at page 10 of the board's decision where it actually announces its claim construction.

[00:15:01] Speaker 04:
And what it says at page 10 of its decision is that tunneling means, quote, transmitting a frame without examination.

[00:15:09] Speaker 04:
And then the board is equally clear at page 23 of its decision that this construction excludes any examination that occurs during transmission for purposes of making a forwarding decision.

[00:15:21] Speaker 04:
And the board also says at pages 23 to 25, then.

[00:15:23] Speaker 01:
But the heart of the matter is page 9.

[00:15:26] Speaker 01:
So when do you get to that?

[00:15:27] Speaker 04:
Yeah.

[00:15:28] Speaker 04:
So I'm happy to get to page 9, Judge Tronto.

[00:15:30] Speaker 04:
And I think that nothing at pages 8 or 9 of the board's decision is creating a carve out for the encapsulation and de-encapsulation process, or creating a carve out to that construction for the encapsulation and de-encapsulation process.

[00:15:42] Speaker 01:
I take it, and maybe I'm wrong about this, is that the heart of the disagreement between the two of you is that you take one view of what

[00:15:49] Speaker 01:
the page nine sentence says at the top of page nine, and they take a different view.

[00:15:54] Speaker 01:
Can you illuminate that?

[00:15:55] Speaker 04:
Yeah, I think that's a fair characterization, Judge Toronto.

[00:15:58] Speaker 04:
So what we think that is happening on pages eight and nine when it's talked about encapsulation and de-encapsulation is the board is acknowledging that claim 11 talks about this encapsulation and de-encapsulation process during tunneling and is explaining why that isn't a form of examinations excluded, and it's because it doesn't happen during the examination process.

[00:16:18] Speaker 04:
And you can see that as the board recognized from claim 11 itself, which lays out encapsulation, de-encapsulation, and transmission as separate steps, separated by still my colons, which this court said in Affinity Lab is a clear signal that these are distinct steps and distinct actions.

[00:16:35] Speaker 04:
And the only type of examination the 211 patent excludes is examination that occurs during transmission.

[00:16:41] Speaker 04:
So if there's an examination that occurs during encapsulation and de-encapsulation, that falls outside of the scope of the claims.

[00:16:47] Speaker 04:
And what happens in Kunzinger is there is examination that happens during transmission.

[00:16:52] Speaker 04:
That's what Arista's expert admitted at pages 11, 22 to 23 of the appendix.

[00:16:57] Speaker 04:
And that's what the board relied on at pages 23 to 25 to find that Kunzinger does not disclose this tunneling limitation precisely because it's performing examination during transmission.

[00:17:10] Speaker 04:
And the board at pages 8 and 9 is not creating a carve out to the express definition of tunneling in the patent.

[00:17:17] Speaker 04:
It's instead explaining why that's perfectly consistent with the express definition in the patent.

[00:17:22] Speaker 04:
And you actually see that at pages 8, where when the board is starting to talk about this encapsulation and de-encapsulation notion, it says it's going to reconcile that with the express definition that's in the 2.11 patent.

[00:17:36] Speaker 04:
And then it goes on to explain that encapsulation and de-encapsulation are not a form of examination.

[00:17:41] Speaker 04:
That's because they're not happening during transmission.

[00:17:44] Speaker 02:
So where is it that you see that they're making this distinction about during transmission on pages 23 to 25 of the board's opinion?

[00:17:53] Speaker 04:
Meaning distinction between during transmission and during encapsulation, de-encapsulation?

[00:17:58] Speaker 02:
You made that distinction.

[00:17:59] Speaker 02:
You said the P tab made that distinction.

[00:18:01] Speaker 02:
I just want to know where it is.

[00:18:02] Speaker 02:
You said on pages 23 to 25.

[00:18:04] Speaker 02:
I would like you to direct me to the specific place where that's happening.

[00:18:08] Speaker 04:
So I think on 23 and 25, what the board is doing is it's explaining what transmission means, and it's just saying,

[00:18:14] Speaker 04:
There cannot be examination during transmission.

[00:18:16] Speaker 04:
And on 23, right there, it's block quoting the text of the specification itself at column 5.

[00:18:23] Speaker 04:
And then the board moves on from there to rely on what Arista's expert is saying.

[00:18:27] Speaker 04:
And it's admission that there is examination happening for forwarding decisions.

[00:18:32] Speaker 04:
And then it's saying, well, since the patent explicitly excludes performing examination during transmission, and it's undisputed that that happens in Kunzinger, that there is

[00:18:44] Speaker 04:
that that resolves this case.

[00:18:46] Speaker 01:
I think this may be exactly the same question, but anywhere in the board opinion, 8, 9, 23, 25, any place else, where is the phrase during transmission or a phrase clearly comparable to that used?

[00:19:04] Speaker 04:
The board never uses the phrase during transmission.

[00:19:06] Speaker 04:
What it uses is the phrase that comes straight from the specification of

[00:19:10] Speaker 04:
Tunneling means transmitting a frame without examination.

[00:19:14] Speaker 04:
And it says that at three different places, including on page eight.

[00:19:17] Speaker 04:
And it says that at page 23.

[00:19:19] Speaker 04:
And then what it says is that it cannot happen.

[00:19:21] Speaker 04:
Examination of a frame for forwarding decisions is excluded by the definition of tunneling.

[00:19:27] Speaker 04:
That's an appendix 23.

[00:19:29] Speaker 04:
And that's what the board then uses to rely on the admission from Arista's expert that there is examination happening for making forwarding decisions.

[00:19:36] Speaker 02:
I don't see this during transmission.

[00:19:38] Speaker 02:
I mean, can you point to me?

[00:19:39] Speaker 02:
Like, look at pages 23 to 25 and point to me exactly at what language you're relying on, because you're paraphrasing it, and I'm just not seeing your point.

[00:19:49] Speaker 02:
And I want to understand what your point is.

[00:19:51] Speaker 04:
Yes.

[00:19:51] Speaker 04:
So on 23, the board says, and this is in the block quote, where it's quoting from the specification, as used herein, tunneling is used to refer to transmitting a frame without examination.

[00:20:02] Speaker 04:
And on page 10, that's the exact construction of

[00:20:06] Speaker 04:
tunneling that the board adopted.

[00:20:08] Speaker 04:
And then one line above that, on page 23 again, the board says, the 211 patents definition of tunneling excludes examination of a frame for forwarding decisions.

[00:20:18] Speaker 04:
And it does that while discussing the admissions from Arista's experts.

[00:20:22] Speaker 04:
Now, I want to also, if I can, turn to how Kunzinger is different from the encapsulation.

[00:20:27] Speaker 04:
You don't want to go there yet.

[00:20:28] Speaker 04:
Right.

[00:20:28] Speaker 01:
Because at least, just speaking for myself, I still do not understand where

[00:20:35] Speaker 01:
you're getting this distinction between that you're making that turns on your language during transmission.

[00:20:43] Speaker 01:
I have the feeling it's extremely clear to you, but it sure isn't to me.

[00:20:47] Speaker 04:
I'm getting it from page 10 of the board's decision, where the board says, quote, accordingly, we construe tunneling to mean transmitting a frame without examination.

[00:20:57] Speaker 01:
And that's its conclusion about what the claim construction is.

[00:21:01] Speaker 01:
Yes.

[00:21:02] Speaker 01:
one page earlier, almost exactly one page earlier by the line, said, we understand that encapsulation and de-encapsulation of a frame are not examination of a frame.

[00:21:15] Speaker 01:
So it has used the term without examination, and just before that, defined something that's not part of the excluded examination thing.

[00:21:25] Speaker 01:
And the dispute between

[00:21:27] Speaker 01:
the two of you is what the terms, what the meaning of this excluded thing is.

[00:21:33] Speaker 01:
And I guess I'm still not understanding your position and its justification.

[00:21:40] Speaker 04:
So our position is that the key word in the board's construction is that word transmitting and that it's the transmitting that needs to happen without examination.

[00:21:51] Speaker 04:
And the board is getting that straight from column five of the 211 patent.

[00:21:54] Speaker 04:
You can see that on page eight where it block quotes.

[00:21:57] Speaker 04:
lines 59, column 5, line 59 through column 6, line 1, and walks through exactly what examination means.

[00:22:04] Speaker 04:
And it uses it by talking about transmitting a frame.

[00:22:06] Speaker 04:
And then it walks through the example of making a forwarding decision by examining the frame to determine the corresponding land segment to send to the frame 2.

[00:22:16] Speaker 04:
And then what the board does when we get to the part of its construction, or part of its decision that's disputed at pages 8 and 9, is the board is walking through and is then trying to explain

[00:22:26] Speaker 04:
Well, we have this claim 11.

[00:22:28] Speaker 04:
And it talks about encapsulation and de-encapsulation.

[00:22:31] Speaker 04:
That happens during tunneling.

[00:22:33] Speaker 04:
And it wants to explain why that's not examination.

[00:22:35] Speaker 04:
And the reason it's not examination is because it does not happen during transmission.

[00:22:40] Speaker 04:
And then the board, and that's why the board doesn't feel any need to talk about whether it comes in a dozen encapsulation and de-encapsulation when it gets to pages 23 through 25, because it's made this decision that if you're making a forwarding decision,

[00:22:52] Speaker 04:
that is always per se the type of examination that is not allowed.

[00:22:57] Speaker 04:
And it doesn't view encapsulation and de-encapsulation as a carve out from that per se rule that is in the specification.

[00:23:04] Speaker 02:
And that's why the board... I'm following what you're saying now.

[00:23:06] Speaker 02:
You're focusing on transmitting.

[00:23:08] Speaker 04:
Exactly.

[00:23:09] Speaker 02:
Okay.

[00:23:10] Speaker 02:
Now, how is it that Kanziker is teaching the encapsulation, de-encapsulation, like looking at that tag?

[00:23:18] Speaker 02:
during transmission as opposed to doing it during encapsulation, de-encapsulation.

[00:23:23] Speaker 04:
Yes, so in Kunzinger, what happens is you have these two endpoints.

[00:23:26] Speaker 02:
And if you can point to the reference itself as you're doing this, that would be more persuasive.

[00:23:30] Speaker 04:
Yes, so Kunzinger at column three talks about performing this encapsulation and de-encapsulation, and it says actually starting at column two, lines 53 to 57, says that these tunnels are used to provide a secure exchange.

[00:23:43] Speaker 04:
And then it says in column three that there's this outer header that's happened, and that happens at the end point.

[00:23:47] Speaker 02:
Where are you looking at in column three?

[00:23:49] Speaker 04:
In column three, line seven to 11.

[00:23:51] Speaker 02:
Thank you.

[00:23:52] Speaker 04:
And it talks about setting up this outer header, which our VISTAs counsel talked about.

[00:23:57] Speaker 04:
And then if you continue looking at column three, lines 11 through 15, it talks about how in this tunnel mode, the outer header remains in clear text form as the packet travels through the tunnel.

[00:24:08] Speaker 04:
And it's undisputed by the expert that what's happening then as the packet travels from one router to the next

[00:24:13] Speaker 04:
is that it's being examined to determine how to forward this to the next device.

[00:24:19] Speaker 04:
And at each of those intermediate routers, there's no encapsulation or de-encapsulation that's occurring, as our expert explains at, I believe it's page 1024 of the appendix.

[00:24:30] Speaker 04:
Instead, it's just making a forwarding decision completely divorced from the encapsulation and de-encapsulation.

[00:24:35] Speaker 04:
It's only at the two endpoints of the tunnel that any encapsulation and de-encapsulation takes place.

[00:24:40] Speaker 04:
And there's all these intermediate devices, as our expert explained,

[00:24:44] Speaker 04:
that are still having to make forwarding decisions along the path.

[00:24:47] Speaker 04:
Now that's different from the 211 patent and the encapsulation and de-encapsulation it talks about.

[00:24:52] Speaker 04:
In that encapsulation and de-encapsulation, it says that the tag is being used to internally route the frame through the tunnel and to the various internal objects, such as the bridge forwarding engine or the tunneling engine.

[00:25:08] Speaker 04:
And you can see that at column seven, lines 38 to 42,

[00:25:12] Speaker 04:
And then again, it lines 49 to 52.

[00:25:14] Speaker 04:
And it's the bridge forwarding engine of the 211 patent.

[00:25:18] Speaker 04:
And it is the bridge forwarding engine and the tunneling engine that then actually make the forwarding decisions.

[00:25:24] Speaker 04:
And they don't do it by looking at the encapsulation tag that's added

[00:25:28] Speaker 04:
onto the packet, unlike in Kunzinger, which does look at the IP address that's in the outer header.

[00:25:32] Speaker 04:
What's the tag doing?

[00:25:34] Speaker 04:
So the tag is just helping to internally route through the device.

[00:25:38] Speaker 01:
What happens is, in one of these devices... I'm sorry, how does the tag, by helping internally route, perform that function without something looking at it?

[00:25:49] Speaker 04:
So it does look at the tag.

[00:25:52] Speaker 01:
It doesn't look at the tag to make a... I'm sorry, what looks at it?

[00:25:55] Speaker 04:
The tunneling tag.

[00:25:57] Speaker 04:
Yes, the multiplexer and demultiplexer, described in column seven, looks at the tag, and then using that tag, internally routes it to a device that's inside.

[00:26:07] Speaker 01:
So for purposes of examining during transmission, why is that different from what's happening in consumer?

[00:26:15] Speaker 04:
It's because, as the board understood, that's not actually during transmission.

[00:26:21] Speaker 04:
The transmission is happening at the forwarding engine.

[00:26:24] Speaker 04:
And at the tunneling engines, and that's where the transmission occurs, this is kind of a precursor step to transmission.

[00:26:31] Speaker 04:
And at those steps, there's no examinations performed of the internal tag or the encapsulation tag.

[00:26:37] Speaker 04:
Instead, at the tunneling engine, it's a pre-configured, pre-determined route.

[00:26:41] Speaker 04:
And as a matter of fact, if the user actually changed the configuration of the device to change that pre-determined route, even though for two identical packets the internal tag was the same, they would go to different devices.

[00:26:54] Speaker 01:
Does Karnziger describe expressly or implicitly any arrangement by which with this outer header, inner header business, there is actually a direct transmission so that there isn't a intermediate, essentially what amounts to a little router looking at it?

[00:27:17] Speaker 04:
Kanzinger never describes that, and it never describes it even at the two endpoints that there's ever a forwarding decision that's made without looking at the outer frame.

[00:27:25] Speaker 04:
But every example in Kanzinger, and if you look at column 10, it actually walks through this.

[00:27:29] Speaker 04:
So for example, column 10, lines 45 through 47 talks about a security gateway that performs forwarding functions, and it's neither a sync nor a source point for the user traffic, and that means an endpoint.

[00:27:42] Speaker 04:
And there's no example in the patent that gets rid of that internal

[00:27:45] Speaker 04:
that security gateway that's between the two endpoints.

[00:27:47] Speaker 04:
There's always some forwarding decision that's happening along the way in Kunzinger.

[00:27:52] Speaker 04:
There's never a pure encapsulation, de-encapsulation, direct transmission without a router in between.

[00:27:58] Speaker 01:
So in the picture from the 2.11 package that we were looking at, I guess, figure four.

[00:28:09] Speaker 01:
Figure four, yes.

[00:28:13] Speaker 01:
Where in this figure does some unit do something with the tag?

[00:28:22] Speaker 04:
So it is the number 418, the mux demux that's listed there.

[00:28:28] Speaker 04:
And you can see that described at column 7, lines 52 to 54.

[00:28:33] Speaker 04:
It's the mux demux that makes the decision based on the tag.

[00:28:37] Speaker 04:
It's 416?

[00:28:39] Speaker 04:
Sorry, is that 416 rather than 418?

[00:28:41] Speaker 04:
I'm sorry.

[00:28:42] Speaker 04:
But it's the MUX, DMUX that's described there.

[00:28:44] Speaker 04:
And it determines what subport that it will go to based on that tag.

[00:28:48] Speaker 04:
And then the subport will send it to either the bridge forwarding engine or the tunneling engine.

[00:28:53] Speaker 04:
And then it's at that bridge forwarding engine and the tunneling engine that then the actual forwarding decision is made and the actual transmission occurs outside the device.

[00:29:00] Speaker 01:
And you can... So I think Ms.

[00:29:02] Speaker 01:
Denon said that the tunnel here, I think I heard her say this,

[00:29:07] Speaker 01:
starts at 418, not at 416.

[00:29:10] Speaker 01:
And if that's right, then 416 is actually doing something with the tag during transmission through this tunnel.

[00:29:18] Speaker 04:
Well, so I think that brings up an important point, which is that transmission happens during tunneling, but tunneling and transmission are not coextensive.

[00:29:27] Speaker 04:
And again, I think if you look at claim 11, it makes that clear when it talks about this de-encapsulation and encapsulation process happening.

[00:29:34] Speaker 04:
in addition to transmission occurring.

[00:29:36] Speaker 04:
And I see my time's up, so I can just make one final point, Judge Newman.

[00:29:39] Speaker 04:
If you look at actually column 11, where it walks through the process that claim 11 covers, it talks about first encapsulation occurs.

[00:29:48] Speaker 04:
And then once that occurs, then transmission happens.

[00:29:53] Speaker 04:
And then it again talks about de-encapsulation occurring.

[00:29:56] Speaker 04:
And then it says, next, after the de-encapsulation, then transmission occurs from the tunneling

[00:30:03] Speaker 04:
directly to the output court and then to the physical device.

[00:30:07] Speaker 04:
And that's at lines 9 to 27.

[00:30:10] Speaker 04:
And so, in the end, we'd like to ask the court to affirm the board's determination that claims 2 and 13 and all that depend from it are applicable.

[00:30:20] Speaker 03:
Thank you, Your Honor.

[00:30:34] Speaker 00:
Thank you, Your Honors.

[00:30:35] Speaker 00:
If I could clarify, I think Council suggested that the transmission doesn't happen in Figure 4 until we get to a tunneling engine, 410, or the bridge forwarding engine, 406.

[00:30:46] Speaker 00:
That's simply not true.

[00:30:48] Speaker 00:
The element known as 412, the bridge interconnect port, we look at column 7, lines 38, it says the bridge interconnect port, 412, internally routes,

[00:31:02] Speaker 00:
which means forwards data to either the forwarding engine or the tunneling engine depending on, for example, information associated with the data, i.e.

[00:31:12] Speaker 00:
the encapsulation tag.

[00:31:14] Speaker 00:
So the transmission and the forwarding is happening right up at the top where I told you at 412, coming in at 418, we tunnel all the way down to the land segment at the end of port five when there's a tunnel packet.

[00:31:26] Speaker 00:
And so I think in terms of technically I just needed to make that clarification

[00:31:31] Speaker 00:
With respect to what is, you know, is there something different about transmission being different than encapsulation, we must go back to the board's opinion at appendix eight where it identifies four actions that do not constitute examination.

[00:31:47] Speaker 00:
The board is correct.

[00:31:48] Speaker 00:
That's encapsulating, transmitting, de-encapsulating, and then directly transmitting to the port.

[00:31:55] Speaker 00:
So there's no suggestion that you can divorce encapsulation, de-encapsulation,

[00:31:59] Speaker 00:
from the process of transmission.

[00:32:00] Speaker 00:
The board tells us and the patent tells us it's all together.

[00:32:04] Speaker 00:
Moreover, when we look at column nine around line 15, it specifically defines de-encapsulation as examining the frame, examining fields in the frame.

[00:32:15] Speaker 00:
And that means that the encapsulation process and the de-encapsulation process includes examining for forwarding purposes.

[00:32:24] Speaker 00:
And so this sort of hyper-technical, grammatical argument of claim

[00:32:29] Speaker 00:
11 simply disregards the overall teaching.

[00:32:31] Speaker 00:
The last thing I'll say as my time is up, Your Honors, is Judge Stola's further response to one of your questions.

[00:32:38] Speaker 00:
Claim two talks about reciting, tunneling a first land with a third land through said first intermediate device.

[00:32:47] Speaker 00:
For the purposes of the kind of tunneling in this patent, the tunnel is through the bridge.

[00:32:52] Speaker 00:
And so the endpoints and any distinction between the endpoints of Kanzungser and the endpoints in the tunnel

[00:32:58] Speaker 00:
is really immaterial because they're both using information added as part of encapsulation in order to route to the appropriate destination through the tunnel.

[00:33:08] Speaker 00:
They're different size tunnels, no question, but it's the same exact sort of tunneling.

[00:33:12] Speaker 00:
And for that reason, we've asked the port to vacate the board's opinion, make it clear that the construction has these two separate parts.

[00:33:21] Speaker 00:
and ask the board to apply the second part so that we can have a record on why Cleansing Center does in fact have that kind of tunneling.

[00:33:29] Speaker 00:
Thank you.