[00:00:02] Speaker 01: Thank you. [00:00:46] Speaker 04: Good morning, Your Honors. [00:00:48] Speaker 04: May it please the Court, Kathleen Sullivan for Cisco Systems. [00:00:52] Speaker 00: The sole issue on appeal is whether... Could you help me understand what's going on here? [00:00:57] Speaker 00: Because I found the briefs rather confusing. [00:01:00] Speaker 00: I'd be happy to, Judge Dyke. [00:01:01] Speaker 00: If you look at page 10 of your blue brief, there are two boxes here. [00:01:05] Speaker 00: There's a show hierarchy and a spanning tree hierarchy. [00:01:11] Speaker 00: If I understand the analytics section of Kenyon and the charge to the jury, it's agreed that those boxes are not protectable subject matter, right? [00:01:24] Speaker 04: Kagan-Independently, Your Honor. [00:01:25] Speaker 04: What is protectable is the compilation that represents the selection and arrangement of commands across hierarchies. [00:01:32] Speaker 00: So. [00:01:32] Speaker 00: So there's my problem. [00:01:35] Speaker 00: What is the compilation? [00:01:36] Speaker 00: Because I've been reading the briefs and can't figure out what it is. [00:01:41] Speaker 04: The compilation is the selection and arrangement of multi-word commands. [00:01:46] Speaker 04: ARISTA has abandoned any attempt to defend the sense of fair judgment on the grounds of any of the other four compilations. [00:01:53] Speaker 00: You mean the way the hierarchies are ordered? [00:01:56] Speaker 04: The way the commands are distributed across the hierarchies. [00:01:59] Speaker 04: For example, let's go right to an example, Your Honor. [00:02:07] Speaker 04: the district court, what I think is really the heart of the district court's Jamal order at pages A, 10, and 11, the district court refers to some protocol that she said that the district court said might have dictated as external factors the selection and arrangement of commands. [00:02:25] Speaker 04: So at page 10, for example, the district court refers to the OSPF [00:02:34] Speaker 04: hierarchy, the OSPF open shortest path first protocol. [00:02:45] Speaker 04: Now, Your Honor, what Cisco did that was original and the jury found protected and infringed is it took a term like OSPF and it took individual terms in the OSPF glossary [00:02:56] Speaker 04: And it decided how to order them across hierarchies. [00:03:00] Speaker 00: Well, I'm sorry. [00:03:01] Speaker 00: I'm just not understanding. [00:03:03] Speaker 00: The show hierarchy itself is unprotectable. [00:03:07] Speaker 00: So what is the compilation here? [00:03:09] Speaker 04: The compilation is the combination of multiple, multiple word commands. [00:03:16] Speaker 04: So for example, Your Honor, stick. [00:03:18] Speaker 00: The combination of various different hierarchies? [00:03:20] Speaker 04: The combination of different multi-word commands across different hierarchies. [00:03:24] Speaker 04: If you read nothing else in our briefs, Your Honor, look at the gray brief, pages 14 to 15 and note 5. [00:03:31] Speaker 04: And we give you all the evidence there about how we arrange things. [00:03:34] Speaker 04: 14 to 15, note 5. [00:03:36] Speaker 04: I promise you, if you go into the record, 14, 15 and note 5, if you go into the evidence on page 15 and note 5, you'll see that what Cisco did is say, okay, there's a protocol out there. [00:03:50] Speaker 04: It's OSPF or IGMP. [00:03:54] Speaker 04: And we distributed, if you look in footnote five, as to OSPF, we distributed across seven different hierarchies. [00:04:01] Speaker 04: So if you look at our citations there, you're going to see that we put OSPF sometimes as the third word in a command. [00:04:10] Speaker 04: IPv6, show IP OSPF border routers. [00:04:15] Speaker 04: Sometimes we put OSPF as the second word in a command. [00:04:20] Speaker 04: Sometimes we put it as the third word or the second, third, or fourth word in the command. [00:04:23] Speaker 04: And what we were doing there is we were creating a taxonomy. [00:04:26] Speaker 04: This is straight out of Oracle versus Google. [00:04:29] Speaker 04: It's no different from the taxonomy that this Court found copyrightable in Oracle versus Google. [00:04:36] Speaker 04: It's a taxonomy whereby we decide, all right, OSPF has to be somewhere, but our engineers will decide where to put it. [00:04:44] Speaker 04: It's sometimes put into the IP hierarchy, which starts with the term IP. [00:04:48] Speaker 04: it's sometimes put into the show of hierarchy. [00:04:51] Speaker 00: Could you maybe explain it using the two hierarchies on page 10 of your blue brief? [00:05:03] Speaker 04: Sure, Your Honor. [00:05:06] Speaker 04: So if you see, for example, in the blue brief on page 10, there's a show hierarchy, and you'll find one [00:05:16] Speaker 04: node takes you to the term spanning tree as the second term within the show hierarchy command. [00:05:24] Speaker 04: But you can look over in the spanning tree hierarchy, a separate hierarchy, and you can see there that we put the term spanning tree in as the root word. [00:05:32] Speaker 04: That means that a bunch of nodes come off spanning tree in the spanning tree hierarchy. [00:05:37] Speaker 04: The originality that the jury found, protectable and infringed, is the fact that we put term like spanning tree sometimes in a [00:05:46] Speaker 04: hierarchy with a different root word, and sometimes as the root word in its own hierarchy. [00:05:50] Speaker 04: So the choice that is protected here is the choice of arranging and creating taxonomies across different hierarchies. [00:06:00] Speaker 04: And that was clearly instructed. [00:06:02] Speaker 04: There's no question here that the case was tried and instructed on the ground that Cisco had to show for infringement, which we did prove and the jury did find, that the selection and arrangement [00:06:14] Speaker 04: of the multi-word commands was original. [00:06:16] Speaker 02: Can I ask you about that? [00:06:18] Speaker 02: At least in one way that I've been thinking about this case, rather a lot turns on whether selection and arrangement are two things that have to be shown to be protectable or not, using that as a shorthand, or whether it's a unitary thing so that the selection and arrangement is original if either the selection or [00:06:44] Speaker 02: the arrangement is, is protectable. [00:06:47] Speaker 02: And it seemed to me that at least the instruction was quite unclear about that or ambiguous about it. [00:06:56] Speaker 02: And even the slightly odd language from the Jamal opinion is unclear about that. [00:07:04] Speaker 02: Can you clarify? [00:07:06] Speaker 04: Absolutely, your honor. [00:07:07] Speaker 04: The instructions are absolutely clear that it's instruction and arrangement. [00:07:13] Speaker 04: Your Honor, the key instructions are 39 and 61. [00:07:16] Speaker 04: Thirty-nine is the infringement instruction. [00:07:19] Speaker 04: at 12-6-7-3. [00:07:20] Speaker 04: Let me see if I can state this better. [00:07:25] Speaker 02: In Instruction 39, Item 1 and Item 2 both use the conjunctive phrase selective and arrangement. [00:07:32] Speaker 02: Right, Your Honor. [00:07:33] Speaker 02: Why is it not the case that if the selection is protectable, then the selection and arrangement is protectable? [00:07:41] Speaker 04: So Your Honor, two points. [00:07:43] Speaker 04: Selection and arrangement [00:07:45] Speaker 04: our conjunctive Cisco, sorry, Arista. [00:07:48] Speaker 02: There's no singular or plural verb following those. [00:07:51] Speaker 02: And your brief was extremely careful to avoid, I think, making a selection of the plural or singular verb. [00:08:00] Speaker 02: And I'm not trying to understand whether this was a matter that everybody understood, and you can see that everybody understood it in the trial record, that it was, that you had to be both, or whether it was just left linguistically [00:08:15] Speaker 04: It was absolutely clear it had to be both selection and arrangement. [00:08:20] Speaker 04: But I agree with you, Your Honor, it's kind of one action by the engineer, but it had to be selection and arrangement, and here's why. [00:08:25] Speaker 04: 39 and 61, the infringement in the sense of fair instruction, both say selection and arrangement. [00:08:33] Speaker 04: The district court's filtration order also said at 1338, [00:08:39] Speaker 04: that there has to be creativity in the selection and arrangement. [00:08:43] Speaker 04: And at 1345, the Filtration Order says there has to be selection and arrangement to have protectability. [00:08:50] Speaker 00: What happens if we disagree with you about that? [00:08:53] Speaker 04: Your Honor, we don't think you can disagree because Arista's waived it. [00:08:57] Speaker 04: You can always disagree with me, Judge Dyke. [00:08:59] Speaker 00: I suppose we do disagree with you and say selection. [00:09:01] Speaker 00: We still win. [00:09:02] Speaker 00: Then we still. [00:09:03] Speaker 00: The jury could have found infringement just based on selection. [00:09:08] Speaker 04: Your Honor, if you find that selection alone is enough, you must still reverse because the only selection to which the evidence points is selection of types of commands. [00:09:20] Speaker 04: If you look at the red brief, ERISTA comes now on appeal for the first time. [00:09:23] Speaker 04: It never presented this theory before. [00:09:26] Speaker 04: And it says, what happened here is function dictated the selection of types of commands. [00:09:31] Speaker 04: We are not claiming to own types of commands. [00:09:35] Speaker 04: We are claiming to own [00:09:36] Speaker 04: a particular expression of particular commands in a particular arrangement that becomes a particular compilation. [00:09:45] Speaker 02: Has I read particularly your gray brief? [00:09:48] Speaker 02: Yes, Your Honor. [00:09:49] Speaker 02: Your gray brief, and to some extent the blue brief as well, doesn't meaningfully contest the selection even of individual commands, but rather puts, I thought, all of its eggs in the basket of saying, [00:10:03] Speaker 02: how we distributed them across hierarchies, namely arrangement, is what was clearly not dictated by standards or anything but our own creative judgment. [00:10:13] Speaker 04: Your Honor, let me be clear. [00:10:14] Speaker 04: We win either of two ways. [00:10:16] Speaker 04: We certainly win on selection and arrangement of multi-word commands. [00:10:20] Speaker 04: Arista has effectively abandoned any attempt to defend the district court's ruling that you could find that sends a fear that there was dictation [00:10:28] Speaker 04: of the arrangement of commands. [00:10:29] Speaker 04: So we win if you find selection and arrangement. [00:10:31] Speaker 04: But we also win if you find selection of the right thing. [00:10:35] Speaker 04: The selection of the actual multi-word commands together, the selection of the multi-word commands, was not dictated by anything in a prior protocol. [00:10:48] Speaker 04: And my key point here, Your Honor, is to go back to OSPF or ITMP. [00:10:53] Speaker 04: Yes, we use those terms, those individual terms. [00:10:56] Speaker 04: but nothing in the protocol. [00:10:58] Speaker 04: And if you go to the protocol glossaries that the district court cites at A10, you will see that nothing in the protocols told you, well, you have to put OSPF first. [00:11:07] Speaker 04: It has to be the root word. [00:11:09] Speaker 04: Or you have to put it [00:11:10] Speaker 04: before a term it defines. [00:11:13] Speaker 02: How does what you're now saying square with the instruction 39 portion that lists 15 items as not protectible, including any single multi-word command? [00:11:29] Speaker 04: It squares exactly with it, Your Honor, because what we are, in fact, it's precisely because [00:11:34] Speaker 04: We can't rely on any single term, any single multi-word command, or any single hierarchy that the jury could have found infringement only by finding we were original in our distribution of the command terms across multiple hierarchies. [00:11:50] Speaker 04: In other words, let me put it this way. [00:11:52] Speaker 04: The smallest protectable unit in this case, and therefore the smallest unit that could be eligible for Sen's affair, [00:12:00] Speaker 04: has to be a compilation unit. [00:12:02] Speaker 04: It has to span at least. [00:12:04] Speaker 04: It has to be bigger than a term. [00:12:05] Speaker 04: It has to be bigger than a multi-word command. [00:12:08] Speaker 04: And it has to span at least two hierarchies. [00:12:10] Speaker 04: So to go back to OSPF, Your Honor, what I was trying to say to Judge Dyke earlier is that the district court says, well, look at the OSPF protocol. [00:12:18] Speaker 04: And look at the place at 51-808 where there's a glossary, appendix 51-808. [00:12:26] Speaker 04: There's a glossary for OSPF. [00:12:28] Speaker 04: And there are some terms in there. [00:12:30] Speaker 04: And then Cisco used those terms. [00:12:32] Speaker 04: Well, the glossary has the term router. [00:12:35] Speaker 04: It has the term interface. [00:12:37] Speaker 04: But nothing anywhere in the OSPF protocol says you have to put them in any order. [00:12:43] Speaker 04: So in one command, we put router OSPF. [00:12:46] Speaker 04: In another command, we put show IP OSPF interface. [00:12:50] Speaker 04: We put interface after OSPF. [00:12:51] Speaker 04: We put router before it. [00:12:53] Speaker 04: What nothing in the protocols dictated was the selection or arrangement [00:12:59] Speaker 04: selection or arrangement. [00:13:00] Speaker 04: We win either way. [00:13:01] Speaker 04: As long as you don't go with Arista's unacceptable theory, which is a backdoor attempt to overrule Oracle v. Google, that they can win on selection of types of commands. [00:13:10] Speaker 04: Types of commands are unprotectable ideas. [00:13:13] Speaker 04: What we're asserting is that the interrelationship that our engineers created among the multi-word commands through a taxonomy structure. [00:13:21] Speaker 00: Among the hierarchy. [00:13:23] Speaker 04: distribution across the hierarchies, Your Honor, distribution of arrangement. [00:13:27] Speaker 04: We had to try the case with one hand tied behind our back, and we still got an infringement verdict. [00:13:32] Speaker 04: We were told we could only prove compilations. [00:13:34] Speaker 04: We couldn't prove originality in multi-word commands. [00:13:37] Speaker 04: We couldn't prove originality in multi-word commands, even though it was conceded by Arista's expert. [00:13:42] Speaker 04: that not a single one of our copied commands existed before we wrote them. [00:13:46] Speaker 00: In terms of arrangement, there's no claim that there's anything protectable about the arrangement of the various hierarchies compared to each other, right? [00:13:59] Speaker 04: We absolutely claim there is, Your Honor. [00:14:01] Speaker 04: We arranged the hierarchies compared to one another. [00:14:04] Speaker 00: That was what was original. [00:14:05] Speaker 00: I'm not sure we're communicating. [00:14:07] Speaker 00: You're saying that the relationship or the arrangement is carrying over different commands from one hierarchy to the other. [00:14:20] Speaker 00: example on page 10 that spanning tree is used in the left-hand hierarchy and also in the right-hand hierarchy, and that creates a relationship, and that is protectable. [00:14:33] Speaker 00: But there's no suggestion that the hierarchies themselves, in terms of which one comes first or second or third, is protected, right? [00:14:42] Speaker 04: No, I disagree, Your Honor. [00:14:44] Speaker 04: The very fact that we created a set of multi-word commands. [00:14:47] Speaker 00: Well, what have you shown about the arrangement in that respect? [00:14:49] Speaker 00: I didn't see anything in the brief suggesting that the arrangement of the hierarchies in relationship to each other is protectable. [00:15:00] Speaker 04: Your Honor, I'm going to go over my time. [00:15:03] Speaker 04: Is it all right if I answer Judge Dyke's question and still reserve time for rebuttal? [00:15:08] Speaker 04: Thank you very much. [00:15:09] Speaker 04: Your Honor, there was overwhelming evidence of originality in the arrangement of the hierarchies and in the jury. [00:15:16] Speaker 00: What is that evidence? [00:15:18] Speaker 00: What is that evidence? [00:15:19] Speaker 00: I understand your point about you created a relationship among the hierarchies by using the same terminology here on page 10 between the left hand and the right hand hierarchy for some overlap. [00:15:33] Speaker 00: And I understand that point. [00:15:35] Speaker 00: Whether it's sufficient or not, that's another question. [00:15:38] Speaker 00: I'm trying to understand what, apart from that, is your claim to the existence of a compilation? [00:15:46] Speaker 04: The claim to an existence of a compilation is exactly based on instruction 39, the selection and arrangement of the multi-word commands as a collective, as a compilation. [00:15:58] Speaker 04: It's undisputed that there were many different ways to arrange [00:16:03] Speaker 04: multi-word commands. [00:16:04] Speaker 04: It's undisputed that there were many ways. [00:16:06] Speaker 04: This is why the jury rejected merger. [00:16:08] Speaker 04: This is why you really can't find sense of fair based on functionality. [00:16:12] Speaker 04: There were many ways to do it. [00:16:13] Speaker 04: And what Cisco's engineers did is they decided whether to have a show hierarchy in which they arranged a set of commands beginning show, and they popped OSPF into it. [00:16:21] Speaker 00: But that is not protectable. [00:16:22] Speaker 00: That decision to use, to have a show hierarchy in the left-hand box here on page 10, that under the section [00:16:33] Speaker 00: opinion and under the instruction is not protectable. [00:16:36] Speaker 04: Your Honor, what I promise you will happen when you look at the evidence in our Gray Reef footnote 5. [00:16:40] Speaker 00: Well, if you answer my question, is that not correct? [00:16:43] Speaker 04: Your Honor, the individual hierarchy is not protectable under the Court's instruction. [00:16:48] Speaker 04: Right. [00:16:48] Speaker 04: What is protectable is the simultaneous decision of the engineers to have the hierarchy on the left on page 10 and also to have the hierarchy on the right on page 10 or, and remember, [00:17:00] Speaker 04: All that's before you is the affirmative defense of sense of fair. [00:17:03] Speaker 04: We won on infringement, and that means all inferences from the verdict go in our favor. [00:17:07] Speaker 00: Why is there infringement also before us? [00:17:09] Speaker 00: They argued lack of infringement. [00:17:10] Speaker 00: They argued in one paragraph. [00:17:12] Speaker 00: Wait, wait, wait, wait. [00:17:13] Speaker 00: Sorry, Your Honor. [00:17:13] Speaker 00: It's an alternative grant, right? [00:17:17] Speaker 00: So that's before us, isn't it? [00:17:18] Speaker 04: Your Honor, barely there's one paragraph at the back of the red brief, which if that preserves the argument, you still should take all inferences in favor of our verdict on the infringement side. [00:17:29] Speaker 04: And if you take all inferences in favor of our verdict on the infringement side, there's overwhelming evidence that, first of all, they've conceded at red brief 18 and 59 that they copied 506 of our command's verbatim. [00:17:42] Speaker 04: And there's overwhelming evidence that the commands we created never existed before we wrote them. [00:17:47] Speaker 04: Arista's expert conceded that at A12210. [00:17:51] Speaker 04: So the multi-word commands didn't exist before we wrote them. [00:17:55] Speaker 04: We weren't allowed to prove that our multi-word commands individually were protected, but we were allowed to show, and did, and all inferences should be taken in favor of this verdict, that we originally protectively selected and arranged the interrelationship among our commands across the hierarchies. [00:18:13] Speaker 04: Your Honor, the district court expressly allowed us to use hierarchies to prove that the compilation of multi-word commands were original. [00:18:20] Speaker 04: It's in the filtration order at A1339. [00:18:23] Speaker 04: It was a crucial moment in the trial. [00:18:26] Speaker 04: Arista, we dropped hierarchies as an independently protectable expression, but Arista conceded that we were allowed to go forward and show that the process for creating commands was related to each command expression's organization in the hierarchies. [00:18:41] Speaker 04: And that's what we did. [00:18:42] Speaker 04: We showed that the multi-word commands were created by a creation of a hierarchical structure. [00:18:49] Speaker 04: We're not allowed to claim any one hierarchy, but we were allowed to claim, and we did show, and the jury did agree, [00:18:55] Speaker 04: that we had created a compilation where the interrelationship of our multiword commands across hierarchies was protectable and infringed. [00:19:03] Speaker 04: So, Your Honor, just to go back to the OSPF example for a moment, what's protected, and I want to answer Your Honor's question, what's protected is OSPF open shortest path first. [00:19:17] Speaker 04: What did our engineers do? [00:19:18] Speaker 04: They said, well, we need to put OSPF somewhere. [00:19:22] Speaker 04: Let's put it in the clear hierarchy. [00:19:25] Speaker 04: is the third term, clear IP OSPF neighbor. [00:19:29] Speaker 04: Let's put it as the second word in the IP hierarchy. [00:19:32] Speaker 04: IP OSPF network, or IPv6 hierarchy is the second word. [00:19:38] Speaker 04: Sometimes let's put it as the third word. [00:19:40] Speaker 00: I understand what you're saying. [00:19:43] Speaker 00: Why doesn't it convince you? [00:19:44] Speaker 00: We have this black box jury verdict, and I'm not sure that the jury found infringement based on the theory that you're articulating here today. [00:19:55] Speaker 04: We have to assume that what the jury found sends a fair corresponds exactly to what the jury found infringed. [00:20:03] Speaker 04: And we're willing to fight on the grounds that the jury found infringed any significant portion of a protectable compilation, and therefore that it sends a fair, any protectable portion of a protectable compilation. [00:20:18] Speaker 00: But the key point, Your Honor, is it had- How do I know that the jury found what you're talking about this morning? [00:20:24] Speaker 04: You assume that the jury did what it was properly instructed to do. [00:20:28] Speaker 04: There's no contest here to instructions 39 or 61. [00:20:32] Speaker 04: And Judge Toronto, that would be my additional answer to your question about selection and arrangement. [00:20:37] Speaker 04: Arista did not object to the word and in instruction 39 and 61. [00:20:41] Speaker 04: And in fact, I would refer Your Honor to docket 597 and docket 603 at pages 50 and 76 respectively. [00:20:52] Speaker 04: Arista actually proposed that instruction 33 say selection and arrangement. [00:20:57] Speaker 02: I assume those are not in the joint appendix. [00:20:58] Speaker 04: They're not in the joint appendix, Your Honor, but I add them for completeness. [00:21:01] Speaker 02: Yes, Your Honor. [00:21:02] Speaker 02: Way back when you referred to something in the analytic dissection order about the unitariness or not unitariness of selection and arrangement, can you point to that? [00:21:15] Speaker 04: Absolutely, Your Honor. [00:21:16] Speaker 04: You will find it in two places as relevant here. [00:21:19] Speaker 04: It's all over the filtration order, but we're just in multi-word command world now. [00:21:23] Speaker 04: It's in the filtration order at pages 1338 and 1345. [00:21:29] Speaker 04: I want to be sure I'm precise, Your Honor. [00:21:41] Speaker 04: So it's at 1338. [00:21:46] Speaker 04: at line 24. [00:21:49] Speaker 04: As Cisco argues, the creativity is found in the selection and arrangement, and it's found again at 1345 at line 8, where the district court says it is the selection and arrangement of the command-lined expressions into a collection that is protectable. [00:22:07] Speaker 02: So the case was tried on and. [00:22:09] Speaker 02: So not, I mean, is. [00:22:12] Speaker 04: That is. [00:22:13] Speaker 04: Is protectable. [00:22:14] Speaker 02: Is is a singular verb. [00:22:16] Speaker 04: I hear you, Your Honor. [00:22:18] Speaker 04: Here's how I think we win. [00:22:19] Speaker 04: I think we win if we're required to show selection and arrangement for protectability, because you can't possibly find that any protocol, any functional constraint, or any customer demand required how we arranged our multi-word commands. [00:22:35] Speaker 04: It just can't be done. [00:22:36] Speaker 04: Arista's practically waived that on appeal by defending this new theory, that they can win if we were dictated in our selection of types of commands. [00:22:45] Speaker 04: You can't go with that. [00:22:46] Speaker 04: Types of commands aren't protectable. [00:22:48] Speaker 04: We didn't argue for protection of types of commands. [00:22:50] Speaker 04: So any functional constraint on selecting the type of command can't be sense of fair. [00:22:55] Speaker 04: So we win if it's selection and arrangement. [00:22:56] Speaker 04: And Arista's almost conceded that. [00:22:58] Speaker 04: I'm sure my friend will disagree that they conceded anything. [00:23:01] Speaker 04: But if you look at the red brief, it's overwhelmingly about selection of types of commands. [00:23:05] Speaker 04: And that's not an acceptable theory. [00:23:07] Speaker 00: But Your Honor, we understand a type of command to be. [00:23:10] Speaker 00: What does that mean? [00:23:11] Speaker 04: A type of command would be something like open shortest path first, an OSPF command. [00:23:17] Speaker 04: But you could, we could be dictated in needing to use, to implement an OSPF command. [00:23:23] Speaker 04: Just, my friend likes to refer to knobs. [00:23:25] Speaker 04: A knob on a television set might execute the volume function. [00:23:30] Speaker 04: But the copyrightable instructions might, or, or, or design might say loudness, volume, sound, or have a picture of a human ear. [00:23:40] Speaker 04: Just because you have a type of command doesn't dictate that you use any particular form of expression to implement it. [00:23:46] Speaker 00: Yeah, but you're not contending that the choice of the particular words here is protectable. [00:23:51] Speaker 04: Your Honor, expand my example to something with multi-words and an arrangement. [00:23:56] Speaker 04: All I'm getting at is a type of command is an unprotectable idea. [00:23:59] Speaker 04: We couldn't have proved infringement based on types of commands. [00:24:03] Speaker 04: We don't own types of commands. [00:24:05] Speaker 04: We don't claim to own types of commands. [00:24:08] Speaker 04: Enter that group management protocol. [00:24:11] Speaker 04: show, display. [00:24:12] Speaker 04: We don't claim to own a type of command. [00:24:15] Speaker 04: We claim to own, and the jury agreed with us, that we owned and Cisco verbatim copied literal expressions of our commands and the arrangement whereby we put them together into the taxonomy. [00:24:28] Speaker 00: But I still have trouble figuring out how you're so sure that that's what the jury found. [00:24:34] Speaker 04: Well, Your Honor, I'm presuming. [00:24:35] Speaker 00: You chose a black box verdict, and that's what we have. [00:24:38] Speaker 04: Your honor, the jury was instructed in extremely rigorous ways by the district court. [00:24:45] Speaker 04: The district court wrote a lengthy filtration order. [00:24:48] Speaker 04: The district court couldn't have gone to more. [00:24:49] Speaker 00: You're saying that this is the only thing that they could have found. [00:24:52] Speaker 04: You must presume that the jury found. [00:24:54] Speaker 00: Is that, I mean, is my statement correct? [00:24:56] Speaker 04: Yes. [00:24:56] Speaker 04: The jury must have found it under the instructions. [00:24:59] Speaker 04: They must have found. [00:24:59] Speaker 04: A compilation. [00:25:01] Speaker 00: Originally to lie in what you're talking about this morning. [00:25:04] Speaker 04: Yes, your honor. [00:25:04] Speaker 04: They have to if you credit that the jury [00:25:07] Speaker 04: obeyed the court. [00:25:08] Speaker 04: The court told them, look at instructions 39 and 61. [00:25:12] Speaker 04: The court told them, Cisco can win only if it proves for present purposes that originality in the selection and arrangement of its multi-word command line expressions. [00:25:22] Speaker 04: And the court told the jury in instruction 61 that Arista must show at the time Cisco created the user interfaces, external factors other than Cisco's creativity dictated that Cisco select, arrange, organize, and design [00:25:36] Speaker 04: its original features in the manner that it did. [00:25:38] Speaker 02: I'm not sure if this is a version of Judge Dyke's question or a different thing, but you haven't contended here, for example, that the jury might have found infringement under item two, selection arrangement of the modes and prompts, [00:25:56] Speaker 02: and might have found Sans Affaire as the number one, and there's a mismatch. [00:26:01] Speaker 02: And until the other side shows that Sans Affaire went with the infringement thing, they can't support it. [00:26:13] Speaker 04: Your Honor, if I understand the question correctly. [00:26:15] Speaker 04: I'm not sure I understand. [00:26:16] Speaker 04: Well, let me refer you to two places, Your Honor. [00:26:18] Speaker 04: In our blue brief at 36 and 37, [00:26:21] Speaker 04: We recite the evidence. [00:26:22] Speaker 04: There's no evidence in the record that could possibly rise to the level of substantial evidence that our modes or prompts, our help descriptions, our command responses were the compilation of compilations. [00:26:34] Speaker 04: The other four compilations are essentially abandoned here. [00:26:37] Speaker 04: There's no possible evidence that could show that anything dictated any of the other four compilations. [00:26:43] Speaker 04: And more important, Arista has really abandoned that at this point. [00:26:46] Speaker 04: We say in the gray brief at footnote four [00:26:49] Speaker 04: We note that you can look through the red brief in vain, and you're not going to find any claim that, oh, well, maybe the jury found sense of fair based on the modes and prompts. [00:26:58] Speaker 04: So as this case comes to you, we're really in compilation number one, the district court's instruction 39, compilation number one, compilation of multi-word commands. [00:27:08] Speaker 04: And there, I think it's just dead to rights that this is not a sense of fair case. [00:27:12] Speaker 04: You know the standard. [00:27:14] Speaker 04: Obviously, it's recited in Oracle v. Google. [00:27:17] Speaker 04: dictated by external factors outside our creativity at the time of creation. [00:27:22] Speaker 04: And nothing in the protocols dictated our selection and arrangement of the commands. [00:27:28] Speaker 04: Judge Toronto, I want to be sure I answer your question about do we win if it's selection only. [00:27:33] Speaker 04: And the answer is yes, we win if it's selection only. [00:27:35] Speaker 04: I don't think that's not the way the case was tried. [00:27:38] Speaker 04: The case was tried on selection and. [00:27:40] Speaker 04: But we win if it's selection only of [00:27:42] Speaker 04: the multi-word commands that we placed across the hierarchies. [00:27:46] Speaker 04: If it's the selection of the commands, not of types of commands. [00:27:51] Speaker 04: The commands were all original expression. [00:27:54] Speaker 04: Our switches hadn't existed when we wrote the CLI originally. [00:27:57] Speaker 02: Where in either of your two briefs do you identify [00:28:03] Speaker 02: that the selection of commands, it would give several examples of the selection of commands as opposed to their distribution across different areas. [00:28:13] Speaker 04: So Your Honor, the selection, it's again, Gray-Bree 14 to 15 and Note 5. [00:28:19] Speaker 04: And we've laid out for every single protocol the district court referenced that the selection of a command, the selection of an OSPF command, the way we wrote it, the command, not the type of command, was original to us. [00:28:33] Speaker 04: If you look at the protocols, the protocols have glossaries. [00:28:37] Speaker 04: They list some terms. [00:28:39] Speaker 04: We chose some of those terms to put in our commands, and we didn't choose others. [00:28:45] Speaker 04: Sometimes we chose to take commands, sorry, take terms that were in the glossaries and then hyphenate them. [00:28:51] Speaker 04: The district court errs at page A-10. [00:28:54] Speaker 04: There's a simple typographical error when the district court says that we took terms [00:29:00] Speaker 04: IGMP glossary at appendix 10, line 14. [00:29:04] Speaker 04: Unfortunately, autocorrect turned IGMP into GIMP at lines 14 and 15. [00:29:10] Speaker 04: But if you actually go to the Internet group management protocol cited in the district court, if you go to exhibit 6877, which the district court cites there, and I'll tell you the exact pages in the appendix where you'll find the glossary. [00:29:26] Speaker 04: It's appendix 57, 544, and 45. [00:29:30] Speaker 04: And in the actual IGMP, Internet Group Management Protocol, glossary, it lists terms that the district court hyphenates here without hyphens. [00:29:41] Speaker 04: So for example, the IGMP glossary had, as four separate words, last member query interval. [00:29:50] Speaker 04: It didn't hyphenate them here. [00:29:52] Speaker 04: Hyphenating them is an organizational choice that our engineers made. [00:29:56] Speaker 04: In other words, rather than creating a query sub-hierarchy, [00:29:59] Speaker 04: and having nodes coming off it that queried interval, queried count, and so forth. [00:30:05] Speaker 04: Our engineers hyphenated those words together. [00:30:07] Speaker 04: So interval, IGMP query interval becomes one word. [00:30:14] Speaker 04: It's non-extensible. [00:30:15] Speaker 04: Those are the organizational choices, Your Honor. [00:30:17] Speaker 04: We're putting terms that are familiar. [00:30:19] Speaker 04: I don't dispute that IGMP as an acronym or the term query interval as a defined term within the IGMP [00:30:28] Speaker 04: We put those terms in our commands. [00:30:33] Speaker 04: But what was original and protected was the way we arranged the multi-word commands to include those terms in different sequences, different taxonomies, across different hierarchies. [00:30:44] Speaker 04: You've crossed this bridge in the SSO portion of the Oracle decision. [00:30:48] Speaker 04: You held that Oracle had copyright protectability in the structure, sequence, and organization of the APIs there. [00:30:57] Speaker 04: In a way, our case is even simpler, because we're about a text-based command line interface. [00:31:02] Speaker 04: We're about human-to-machine communication, not machine-to-machine communication. [00:31:07] Speaker 04: So there's absolutely no mechanical or programming constraint on how we wrote these. [00:31:13] Speaker 04: We could have written any number of combinations of these multi-word commands and distributed them differently across the hierarchies. [00:31:21] Speaker 04: That's the originality, and that's not Sends Affair. [00:31:23] Speaker 04: Your Honor, I realize I'm going way over my time. [00:31:26] Speaker 04: Why don't you sit down and we'll restore your rebuttal. [00:31:28] Speaker 04: I just want to say we have an alternative argument that you need not reach any of this if you find that verbatim copying is not eligible for Sends Affair at all under the Apple-Microsoft case. [00:31:38] Speaker 04: And that's an alternative ground for affirmance that would allied all these questions. [00:31:42] Speaker 04: And we didn't waive it in our 58. [00:31:44] Speaker 04: Thank you very much, Your Honor. [00:31:58] Speaker 03: Good morning, Your Honor. [00:32:00] Speaker 03: May it please the Court, Bob Van Nest. [00:32:03] Speaker 03: I'm here on behalf of Arista Networks. [00:32:05] Speaker 03: The jury heard substantial evidence supporting it sends a fair verdict. [00:32:10] Speaker 00: As I think the panel knows, the jury was instructed... Help us. [00:32:16] Speaker 00: understand whether you agree that her theory about the overlap in these command words among the hierarchies [00:32:29] Speaker 00: is protectable subject matter under the copyright law. [00:32:33] Speaker 00: Do you agree with that? [00:32:34] Speaker 00: Or is your position that we don't know when the jury adopted that? [00:32:38] Speaker 00: What is your position about that? [00:32:40] Speaker 03: Three points in response to that, Your Honor. [00:32:42] Speaker 03: First, we spent a lot of time on arrangement, but arrangement was never presented to the jury. [00:32:47] Speaker 03: This argument about arrangement, why? [00:32:49] Speaker 03: Because the [00:32:51] Speaker 03: Commands they claim were copied were not arranged in any particular way. [00:32:55] Speaker 03: The only arrangement that was ever shown. [00:32:57] Speaker 00: Let's start with basics. [00:33:00] Speaker 00: You understand what her argument is, probably. [00:33:02] Speaker 00: I do. [00:33:02] Speaker 00: Much better than I do. [00:33:05] Speaker 00: Is her argument that this is protectable subject matter correct? [00:33:11] Speaker 03: No. [00:33:12] Speaker 03: No. [00:33:12] Speaker 00: Why not? [00:33:12] Speaker 03: Not in this case. [00:33:14] Speaker 03: Because after hearing two weeks of testimony, Judge Freeman issued a dissection order and a jury instruction. [00:33:21] Speaker 03: which put out of play almost all elements of the user interface. [00:33:24] Speaker 03: It put out of play any single multi-word command, any command hierarchy, any method of grouping commands under a common word, which would cover what she's now arguing. [00:33:36] Speaker 00: What she's saying is that it didn't preclude the combination of two or more hierarchies in being protectable subject matter. [00:33:45] Speaker 00: That was not the result of the analytic dissection [00:33:48] Speaker 00: I don't. [00:33:51] Speaker 03: I don't, because the judge not only eliminated any command hierarchy, but also any grouping of commands under a single word or topic. [00:34:06] Speaker 02: Where is that? [00:34:07] Speaker 02: Is that in Instruction 39? [00:34:08] Speaker 03: It is. [00:34:09] Speaker 03: It's in 1339, Your Honor, Appendix 1339. [00:34:13] Speaker 02: Is it in Instruction 39, the grouping apart from the hierarchy? [00:34:23] Speaker 03: Yes, it's Item 3. [00:34:25] Speaker 03: I'm on page 1396 of the appendix, Your Honor. [00:34:30] Speaker 03: This is Instruction 39. [00:34:32] Speaker 03: Item 2 is any single word. [00:34:36] Speaker 03: multi-word command, Judge Taranto, it's item three, the idea or method of grouping or clustering commands. [00:34:43] Speaker 02: I'm not sure I would read that to say any grouping, any choice of a particular grouping, but rather the idea or method of grouping as an organizational principle. [00:34:53] Speaker 03: Well, maybe it's not crystal clear, but I can say with confidence that this idea of arrangement [00:35:02] Speaker 03: was never even presented to the jury. [00:35:05] Speaker 02: I'm sorry, what do you mean by that, since the word appears in 39? [00:35:11] Speaker 03: What I mean, Your Honor, is that the case was not tried based on arrangement. [00:35:16] Speaker 03: Let me back up a little bit. [00:35:17] Speaker 03: I agree with Your Honor's interpretation, and I think everybody understood that selection and arrangement is a single thing. [00:35:26] Speaker 03: The copyright statute defines compilation as a collection that is selected [00:35:32] Speaker 03: coordinated or arranged in jury instruction 33 in our set, which Cisco didn't object to, uses the disjunctive. [00:35:41] Speaker 03: They would have screamed bloody murder if the judge had said you jurors must find both selection and arrangement. [00:35:49] Speaker 03: That's not what was understood. [00:35:51] Speaker 03: What was understood was that since the Copyright Act defines compilation as a selection or arrangement, [00:35:58] Speaker 03: You need to show one or the other. [00:36:00] Speaker 03: Obviously, an anthology of poems that is selected can be copyrightable even if it's organized in alphabetical or chronological order. [00:36:11] Speaker 03: No court has said, you must prove both. [00:36:14] Speaker 03: Selection and arrangement are a unitary thing. [00:36:17] Speaker 00: That's why we say. [00:36:18] Speaker 00: If I understand what they're saying is they're saying that there is selection here because they've selected particular words to use across different higher [00:36:29] Speaker 03: That's right. [00:36:29] Speaker 03: That's what they're saying. [00:36:31] Speaker 03: And what we're saying is that if that's the case, since they resisted a verdict form that would have required jurors to identify what compilation they found infringed, we have this black box and we don't know. [00:36:46] Speaker 03: So the presumption has to be in favor of the verdict. [00:36:49] Speaker 03: The verdict was Sensafer for the appellee. [00:36:52] Speaker 00: But how do you win, then, on Sensafer? [00:36:55] Speaker 00: Let's assume that that's correct. [00:36:57] Speaker 00: that the jury only had to find selection and that their contention is that selection was shown because they've selected the identical terms to use in different hierarchies. [00:37:09] Speaker 03: The overwhelming evidence from both our expert, their expert, and the lay witnesses, Your Honor, was that the selection here was dictated by the choice of features you put in the switch. [00:37:19] Speaker 03: In other words, John Black, our expert, testified that [00:37:24] Speaker 03: When the manufacturer decides which of these industry protocols its switch is going to support, then the set must contain the commands necessary to carry that function out. [00:37:37] Speaker 03: So the commands aren't created in a vacuum. [00:37:41] Speaker 03: They're created only in response to your selection of what features you're going to have. [00:37:47] Speaker 03: And that once the manufacturer decides that, let's take OSPF. [00:37:51] Speaker 00: But it doesn't dictate the terminology that you use. [00:37:54] Speaker 03: Well, what jurors understood, Your Honor, from the examinations of Mr. Black and particularly Mr. Elmeroth, their expert, was that virtually every command, and I recognize commands aren't protectable, but every single command came directly out of a protocol that the industry had approved for use. [00:38:13] Speaker 03: So the industry says, [00:38:15] Speaker 03: If we're going to do a border gateway protocol, here are the elements of that that you want to implement. [00:38:22] Speaker 03: Now, you don't have to implement all of them, but whatever ones you choose to implement, there must be a command in your CLI set to do that, and the commands [00:38:32] Speaker 03: Virtually everyone, Your Honor. [00:38:33] Speaker 00: Kennedy The industry protocol, let's look at page 10 of the blue brief. [00:38:37] Speaker 00: Does the industry protocol tell you to have these commands that are displayed in that box, in the hierarchy there? [00:38:46] Speaker 03: Waxman Yes, in this sense. [00:38:48] Speaker 03: The OS, the IGMP protocol, which is at 57544, has a definitional section. [00:38:56] Speaker 03: And that definitional section lists the terms that [00:39:00] Speaker 03: correspond to the functions. [00:39:03] Speaker 03: They took these verbatim. [00:39:04] Speaker 03: What page is that on? [00:39:05] Speaker 03: This is on page of the Joint Appendix 57544 and 57545, and... I think it's in volume three, 57544 and 57545. [00:39:22] Speaker 03: We cross-examined Dr. Al Moran. [00:39:24] Speaker 00: Wait, wait, wait, hold on. [00:39:32] Speaker 00: OK. [00:39:35] Speaker 03: I'm looking at it. [00:39:35] Speaker 03: So for example, Dr. Almaroth, their expert, testified IGMP is a well-known protocol, and all the network engineers know that IGMP means Internet Group Management Protocol. [00:39:48] Speaker 03: Query interval, 8.2. [00:39:50] Speaker 03: 8.6, startup query interval. [00:39:54] Speaker 03: 8.7, startup query count. [00:39:58] Speaker 00: OK. [00:39:58] Speaker 00: Is it possible to take this left-hand box [00:40:01] Speaker 00: on page 10 of the blue brief and relate it to the industry standards. [00:40:08] Speaker 00: Is there a show standard here that helps us? [00:40:13] Speaker 03: All of these terms, spanning tree, storm control, TACAS, TRAC, et cetera, they all come from various protocols that were shown to the jury. [00:40:26] Speaker 03: For example, one thing... Are you able to show us which [00:40:30] Speaker 00: that protocol corresponds to that box. [00:40:33] Speaker 03: They didn't prove every one of those, and neither did we. [00:40:36] Speaker 03: What I can show you and list for you is that there were at least a dozen, half a dozen protocols discussed with Dr. Almaroth, and those include the IGMP protocol. [00:40:54] Speaker 02: The IGN protocol in particular is not particularly relevant to the blue brief page 10 thing. [00:41:00] Speaker 02: Is that right? [00:41:01] Speaker 03: I don't see an IGMP term. [00:41:05] Speaker 03: That's right. [00:41:06] Speaker 02: Right. [00:41:06] Speaker 02: So is there some other joint appendix protocol that we might look at to see some of the words that appear on page 10? [00:41:15] Speaker 03: For example, you could look at the IP protocol. [00:41:20] Speaker 03: The IP protocol is [00:41:23] Speaker 03: excuse me, the OSPF protocol is 51808. [00:41:26] Speaker 03: The word router is found there. [00:41:30] Speaker 03: I believe we've got a router. [00:41:34] Speaker 03: But the point is, virtually all of these terms come directly from protocols. [00:41:41] Speaker 00: So in other words, when there's a duplication between the left-hand box and the right-hand box of the word show, [00:41:53] Speaker 00: What you're saying is that the industry protocol requires the use of the word show to correspond to that function in each of those higher markings. [00:42:02] Speaker 03: That's right. [00:42:03] Speaker 03: Show is a more common phrase, Your Honor. [00:42:05] Speaker 03: But the point is that when you get past something like that, that was widely used before Cisco, and you get to IGMP, or you get to SNMP, or you get to these individual words, they all come right out of the protocol. [00:42:19] Speaker 00: And what we showed... Like the spanning tree, for example. [00:42:23] Speaker 00: So the spanning tree, the protocol tells you to use the terminology spanning tree to describe a particular function. [00:42:30] Speaker 03: The protocol describes the function of spanning tree. [00:42:33] Speaker 03: That's right. [00:42:33] Speaker 03: The protocol itself describes the function as spanning tree, and they adopted it directly from the protocol into their set of commands. [00:42:42] Speaker 00: So our point is... So the idea is that sent-affair applies because it tells you that both [00:42:50] Speaker 00: within a particular hierarchy and across hierarchies, you have to use the same terminology. [00:42:56] Speaker 03: That's right. [00:42:57] Speaker 03: It applies in this sense, Your Honor. [00:42:59] Speaker 03: It's two steps. [00:43:00] Speaker 03: Once the designer of the system, these are network switches, and they all have to work together, and the network engineers are running them as a group. [00:43:08] Speaker 03: So once the manufacturer decides, I'm going to support the spanning tree function, there must be a command that says spanning tree, because that's what the protocol calls for. [00:43:19] Speaker 03: And that was testified to by Dr. Black, by Anthony Lee, a former Cisco engineer, who said, you must have commands in your set to control the features in your switch. [00:43:32] Speaker 03: Dell, we presented a witness from Dell, Gavin Cato, who testified, if your switch supports a networking protocol, then the basic commands you need have to be there in the switch. [00:43:44] Speaker 03: It was essentially undisputed. [00:43:45] Speaker 03: Even Dr. Almaroth conceded. [00:43:48] Speaker 03: after the sixth or seventh protocol that we reviewed with him on cross-examination, that virtually all of the commands up and down in all these various sets were directly from the protocol. [00:44:01] Speaker 03: Now, I want to take a separate, slightly. [00:44:04] Speaker 00: that the fact that spanning tree, for example, appears in the left-hand box and the right-hand box to describe these particular functions is dictated by the network protocol. [00:44:15] Speaker 00: There's not creativity in using that particular term both for the left-hand box and the right-hand box. [00:44:21] Speaker 03: That's right. [00:44:22] Speaker 03: And that's what we argued to the jury, is that it was compelled by the selection of the features, and the features are all set forth in network protocols, and the protocols define the features [00:44:33] Speaker 03: in the same terms that Cisco used. [00:44:36] Speaker 03: Now, I want to make another point which is related. [00:44:39] Speaker 03: Judge Toronto asked about selection and arrangement. [00:44:42] Speaker 03: And as I pointed out, the selection and arrangement issue never arose in this sense. [00:44:48] Speaker 03: Everyone assumed that either one would be sufficient, just like an anthology of poems. [00:44:53] Speaker 03: And that's why the compilation definition in Jury Instruction 33 [00:44:59] Speaker 03: says selection or arrangement. [00:45:00] Speaker 03: They would have complained like crazy if Judge Freeman had told jurors, you must find both selection and arrangement. [00:45:08] Speaker 00: Why? [00:45:08] Speaker 00: I'm not sure what the difference is, whether it's selection or selection and arrangement. [00:45:12] Speaker 00: I mean, it seems to me that they're making the same argument whichever term you use, whether you use selection or selection and arrangement. [00:45:21] Speaker 00: They're conceding. [00:45:22] Speaker 00: Wait. [00:45:22] Speaker 00: What they're saying is [00:45:24] Speaker 00: that among hierarchies, there's the use of the same terminology to describe the same function, and that there's originality in that. [00:45:34] Speaker 03: I think what they're conceding, Your Honor, is that this. [00:45:37] Speaker 00: Help me answer what I just said. [00:45:39] Speaker 03: I don't understand their argument the way you do. [00:45:41] Speaker 03: I think what they're saying is, we concede that selection alone could, we concede that selection may have been shown by them. [00:45:53] Speaker 03: as the basis for the verdict. [00:45:55] Speaker 03: And we can see that selection comes from these protocols once you decide what feature. [00:46:00] Speaker 03: I think what they're saying is we never proved the arrangement and that you have to prove both in order to sustain our sense of fair verdict. [00:46:09] Speaker 03: The problem with that, you already anticipated, which is they never proved any particular arrangement either. [00:46:14] Speaker 03: Why? [00:46:15] Speaker 03: Because the commands that they're complaining about were not arranged in any particular way. [00:46:21] Speaker 03: They come from four separate [00:46:23] Speaker 03: operating systems, the Arista commands. [00:46:25] Speaker 03: They come from many different hierarchies. [00:46:28] Speaker 03: They never put up a chart in opening, closing, or anywhere and said, here is our compilation of arranged things, and they're arranged the same way, because there was no evidence. [00:46:39] Speaker 03: And the only place these commands are ever actually arranged, where jurors can see them, are in the manuals. [00:46:46] Speaker 03: and the manuals were explicitly found not infringed by the jury. [00:46:50] Speaker 02: All that, Your Honor, is attorney argument. [00:47:04] Speaker 03: It was never presented to the jury. [00:47:07] Speaker 03: It was [00:47:08] Speaker 02: assume maybe I've misunderstood I understood that that footnote said and I think Miss Sullivan said if you look at the IGMP terminology we actually put a little bit over here and a little bit over there and that is what [00:47:25] Speaker 02: At least that is what we mean by arrangement. [00:47:28] Speaker 02: We could have put it all in place. [00:47:30] Speaker 02: And so even stipulating for argument's sake that the selection of all the terms was driven by the need or interest in complying with standards, how we distributed the terminology across different hierarchies is an arrangement that was not driven by anything. [00:47:53] Speaker 03: I'll assume that for sake of argument, they never proved that as a basis for infringement. [00:47:57] Speaker 03: That's one of the basis that we moved for judgment of a matter of law on the infringement verdict. [00:48:02] Speaker 03: They never proved that that arrangement, whatever they now say it was, because they never laid that out for the jury, but they also never proved that that arrangement was copied. [00:48:11] Speaker 03: That's the point, is that they never put up a chart like on pages 10 and 11 to show here's our arrangement. [00:48:19] Speaker 03: Here's Arista's arrangement. [00:48:21] Speaker 03: They're the same. [00:48:21] Speaker 03: That was never proven. [00:48:22] Speaker 03: It was never even attempted to be proved. [00:48:24] Speaker 03: Why? [00:48:24] Speaker 03: Because the commands they were accusing do not exist anywhere outside the lawsuit. [00:48:31] Speaker 03: They were selected by the lawyers to present as the basis for their claim. [00:48:35] Speaker 03: They're from different operating systems. [00:48:37] Speaker 00: They're from different... In other words, if I understand correctly, you're saying that [00:48:40] Speaker 00: there wasn't any proof that the hierarchy organized the way it is. [00:48:44] Speaker 00: For example, the left-hand box on page 10 was copied. [00:48:49] Speaker 00: What was copied was that somehow, I guess there are maybe 15 different commands in here. [00:48:58] Speaker 00: That's right. [00:48:59] Speaker 00: You copied show version. [00:49:03] Speaker 00: You copied show SNMP group. [00:49:08] Speaker 00: Each one of those was copied, but not in this format. [00:49:13] Speaker 03: Right. [00:49:13] Speaker 03: Exactly right. [00:49:14] Speaker 03: And that's why at page, it was a turning point in the trial during the dissection hearing. [00:49:21] Speaker 03: It's not just that the judge said hierarchies are out. [00:49:25] Speaker 03: They abandoned any effort to prove hierarchies as protected material. [00:49:30] Speaker 03: At page 1339 of the dissection order, Judge Freeman notes, and they don't complain [00:49:35] Speaker 03: They abandoned it. [00:49:36] Speaker 03: Why? [00:49:36] Speaker 03: Because they couldn't prove that a hierarchy or anything like it was copied. [00:49:42] Speaker 03: Why? [00:49:42] Speaker 03: Because these commands, as Your Honor just noted, their commands are not protectable. [00:49:47] Speaker 03: The hierarchies are not protectable, and they had no proof that any so-called arrangement that they're now arguing was copied, and they didn't even make the argument to the jury. [00:49:57] Speaker 03: You can read the opening, the closing, and everything in between. [00:50:00] Speaker 03: There was never an argument. [00:50:02] Speaker 03: that what Arista copied is this arrangement that they have ginned up in their reply brief. [00:50:07] Speaker 03: In the reply brief, not in the opening brief, it's nowhere in the record. [00:50:11] Speaker 03: All they've done is taken protocols that were in the record and made an attorney argument now, but they have no evidence whatsoever. [00:50:20] Speaker 03: And that's why we asked Judge Freeman to throw the verdict out. [00:50:25] Speaker 03: We said there wasn't any evidence of any of this. [00:50:29] Speaker 03: And after the dissection order, there was no compilation shown to the jury that could have been the basis for infringement. [00:50:34] Speaker 03: She didn't deny our motion. [00:50:36] Speaker 03: She said, it's moot. [00:50:37] Speaker 03: I'm going to support the verdict. [00:50:39] Speaker 03: And what she said was, because we now have a black box verdict, I can assume that the jurors found some minimal selection of some commands as original. [00:50:51] Speaker 03: But as to those, there's overwhelming evidence of sense a faire from the testimony of the experts, [00:50:57] Speaker 03: the networking engineers, the people that design the systems, that these things are dictated by your choice of features in your switch and the protocols that define and describe those. [00:51:08] Speaker 03: And so for that reason, the verdict below the judgment should be affirmed. [00:51:14] Speaker 03: I'm happy to take further questions from the panel. [00:51:17] Speaker 03: Thank you. [00:51:24] Speaker 04: Three quick points, Your Honor. [00:51:26] Speaker 04: The case was tried on arrangement. [00:51:28] Speaker 04: I was at the entire trial, too. [00:51:30] Speaker 04: It was tried on arrangement because that's what the district court let us do. [00:51:33] Speaker 04: She tied one hand behind our back, and it was tried on arrangement. [00:51:37] Speaker 04: I'd refer Your Honors to the blue brief at 1314, where we have listed all the evidence of how we tried the case on arrangement. [00:51:45] Speaker 04: 1314 lists just some of the evidence about, if you look at blue brief 13, middle of the page, testimony about [00:51:53] Speaker 04: how we organized it. [00:51:55] Speaker 04: The aesthetic is the way the CLI is organized, our experts discussing whether to place a command in the show or IP hierarchy. [00:52:03] Speaker 04: You can read the evidence at 1314. [00:52:05] Speaker 04: The case was tried on arrangement. [00:52:06] Speaker 04: It was instructed on arrangement. [00:52:08] Speaker 04: Arrangement was what the district court allowed us to show, and we showed arrangement across hierarchies. [00:52:13] Speaker 04: Second, the features did not dictate the terminology. [00:52:17] Speaker 04: Judge Dyke, you asked that in a question, and I'd like to answer that question correct. [00:52:22] Speaker 04: the features did not dictate the choice of any terminology. [00:52:26] Speaker 04: I'd refer your honors to just four. [00:52:28] Speaker 00: But I felt the network protocol did tell you what, maybe not dictate, but did suggest the use of particular terminology. [00:52:35] Speaker 00: In other words, if we look at this left-hand box and we found the right industry protocol, show and version, show version would appear as a suggested terminology to describe a particular function. [00:52:50] Speaker 00: Is that correct? [00:52:53] Speaker 04: Terms, yes. [00:52:55] Speaker 04: Arrangement, no. [00:52:56] Speaker 04: And this is the core of the case, Your Honor. [00:52:58] Speaker 04: Protocols may have dictated individual acronyms. [00:53:02] Speaker 00: But did you prove that the arrangement, for example, shown in the left-hand hierarchy was copied by them, or just that the same terminology was used? [00:53:11] Speaker 04: Your Honor, I would respectfully suggest, I'm trying to give you a roadmap through the case, you should please look at the question. [00:53:21] Speaker 00: No, no, but let me help answer the question. [00:53:23] Speaker 00: If you look at 51105... Did they copy the type of arrangement that's shown in the left-hand box, or did they just copy the use of the same terminology? [00:53:34] Speaker 04: They copied our commands, three- and four-word commands. [00:53:38] Speaker 04: So if you were looking at the example on page 10, they copied show, if you look at the box on the left, show, spanning tree, MST configuration. [00:53:48] Speaker 00: Okay, and they say that they copied that, but they didn't arrange it the way it's shown in your left-hand box, right? [00:53:57] Speaker 04: No, Your Honor, here's the key. [00:53:59] Speaker 04: When they copied our commands, the commands embody our arrangement. [00:54:04] Speaker 04: Our arrangement was to put them in this order, show spanning tree MST configuration. [00:54:10] Speaker 04: What was original, and if you look at the evidence in blue brief 13 to 14, you'll see ample evidence to support our verdict. [00:54:17] Speaker 04: for infringement, all inferences are taken in favor of Cisco's verdict of infringement, you will see that the commands were created by the engineers through organization of the hierarchies. [00:54:28] Speaker 00: Now, Your Honor, my friend... But if you were an engineer approaching this, because of the industry protocol, you would use the terminology, show spanning the MST configuration to describe a particular function. [00:54:42] Speaker 04: No, Your Honor, that's not correct. [00:54:44] Speaker 04: You could have said show. [00:54:45] Speaker 04: You could have said display. [00:54:47] Speaker 00: You could have... I'm talking about what was suggested. [00:54:49] Speaker 04: No, Your Honor. [00:54:51] Speaker 04: I promise you, go to the glossaries in the protocols. [00:54:54] Speaker 04: And you will not find a single direction about how to arrange the terms in the glossaries. [00:55:00] Speaker 04: Nothing in IGMP says you must have an IGMP hierarchy that begins with IGMP as the root. [00:55:07] Speaker 04: And we didn't. [00:55:08] Speaker 04: IGMP is not a root term in any of our hierarchies. [00:55:12] Speaker 04: We put it in the show hierarchy. [00:55:13] Speaker 04: We put it in the IP hierarchy. [00:55:15] Speaker 04: We put it in different hierarchies. [00:55:17] Speaker 04: Nothing in the protocol might have told us use the term IGMP, but it didn't tell us where to put it across the hierarchies. [00:55:24] Speaker 00: I thought that the suggestion was that the industry protocols did tell you about what combinations of words to use to describe particular functions. [00:55:36] Speaker 00: So that if you look to the right protocol, you'd find something that said show version [00:55:42] Speaker 00: And it would describe what function that was and suggest that you use that terminology for that function. [00:55:47] Speaker 04: Your Honor, that is the heart of the case. [00:55:50] Speaker 04: And that is 100% incorrect. [00:55:52] Speaker 04: Incorrect. [00:55:53] Speaker 04: That's why the JMO order is incorrect on page A10. [00:55:57] Speaker 04: If you go to the glossaries for the protocols, they say nothing about the arrangement of the term. [00:56:03] Speaker 04: We could have done a query. [00:56:04] Speaker 04: We could have taken IGMP, which has four query terms in the appendix. [00:56:10] Speaker 04: And we could have created a query hierarchy. [00:56:12] Speaker 04: But we didn't. [00:56:12] Speaker 04: We created non-extensible hyphenated last member query count terms. [00:56:17] Speaker 04: So, Your Honor, the core of this case, let me say it as simply as I can. [00:56:21] Speaker 04: If you find that the use of a single industry acronym, industry protocol term like OSPF or IGMP, or a single term from a protocol glossary, if you find that putting those into a computer user interface is enough to create sense affair, [00:56:41] Speaker 04: you will have destroyed copyrightability for user interfaces. [00:56:45] Speaker 04: And you would have done through the back door exactly what you said my friend couldn't do through the front door in Oracle versus Google. [00:56:52] Speaker 04: If we're copyrightable in our arrangement, which is all the district court allowed us to prove and the jury agreed with us and all inferences should be drawn in our favor, they had to prove Sen's affair as to the arrangement too. [00:57:03] Speaker 04: And nothing in the protocols tells you how to arrange them. [00:57:05] Speaker 04: I promise you, Your Honor, go to our [00:57:07] Speaker 04: evidence. [00:57:07] Speaker 04: The glossaries list isolated terms. [00:57:09] Speaker 00: When you're talking about it, if they're right, let's assume that my understanding of what they're saying is correct. [00:57:17] Speaker 00: That the industry protocol will tell you to use show version for a particular command, a particular function. [00:57:25] Speaker 00: Let's assume that that's correct. [00:57:27] Speaker 00: Then there's no originality in using that particular terminology, right? [00:57:33] Speaker 04: Your Honor, [00:57:36] Speaker 04: There would be no originality if the industry protocol dictated the arrangement, but the industry protocols did not dictate the arrangement. [00:57:43] Speaker 04: Don't take it from me. [00:57:44] Speaker 04: Take it from Arista's expert, Dr. Black, who said, and this is a crucial admission, at 12-2-10, none of our copied commands in the order they were written existed before we wrote them. [00:57:56] Speaker 04: That means no protocol ever told us we had to write our command in this order referring to all the hierarchies that comprised the command. [00:58:03] Speaker 00: And I want to refer your honors to a very important- I don't know what that testimony means. [00:58:07] Speaker 00: I mean, that could mean that the box that's shown on page 10 did not previously exist in the industry protocols. [00:58:16] Speaker 00: And I don't understand your opponent to be saying otherwise. [00:58:20] Speaker 00: But what they are saying is that when you make the combination shown in the box, that that is suggested by industry protocols. [00:58:29] Speaker 04: Your Honor, the combination is not suggested by the industry protocol. [00:58:32] Speaker 04: I promise you. [00:58:33] Speaker 04: This is why the district court erred on pages 9 and 10. [00:58:37] Speaker 04: It's not set forth. [00:58:38] Speaker 04: It's not set forth in an industry protocol, Your Honor. [00:58:41] Speaker 04: The term show is in an industry protocol. [00:58:43] Speaker 04: The term IPv6 is an industry protocol. [00:58:46] Speaker 04: IGMP has terms like start query interval in the glossary. [00:58:51] Speaker 04: But the crucial thing is, at the time we created our CLI, no protocol told us how to arrange things in the hierarchy. [00:58:58] Speaker 04: a couple of crucial places in the record I want to refer Your Honors to. [00:59:01] Speaker 04: First of all, my friend referred to A 1339, that's the filtration order, and he said hierarchies were out of the case. [00:59:09] Speaker 04: They are not out of the case. [00:59:11] Speaker 04: The crucial, he said it was a turning point in the trial, and indeed it was, and it supports our case for reversal. [00:59:16] Speaker 04: The district court said that Cisco may, with Arista's agreement at 1339, show that the process for creating commands [00:59:27] Speaker 04: was related to each command expression's organization in the hierarchies. [00:59:32] Speaker 04: And that's what we set out to prove. [00:59:34] Speaker 04: And that's what we proved and the jury found for us. [00:59:36] Speaker 04: Now they come in and they say, oh, that was dictated by the protocols. [00:59:39] Speaker 04: But there's a disconnect. [00:59:40] Speaker 04: The protocols didn't tell us how to arrange these commands. [00:59:44] Speaker 04: And I want to refer you to four key pieces of evidence that I commend to the court. [00:59:48] Speaker 04: Mr. Duda, Arista's Chief Technical Officer, admitted that you could perform the same functions with a different [00:59:57] Speaker 04: set of command line interfaces. [00:59:59] Speaker 04: He said it's technically achievable. [01:00:01] Speaker 04: And by the way, 20% of Arista's customers use Linux. [01:00:04] Speaker 00: Well, it's technically achievable, but that's not the question. [01:00:06] Speaker 00: That means nothing dictated it. [01:00:09] Speaker 04: Suggested isn't enough. [01:00:11] Speaker 04: Dictated means practically indispensable. [01:00:14] Speaker 04: That's clear Ninth Circuit law. [01:00:15] Speaker 00: So you agree that the industry protocol suggested that? [01:00:18] Speaker 04: I wouldn't. [01:00:19] Speaker 04: The industry protocol said nothing about how you put your sequence in. [01:00:22] Speaker 04: The industry protocol didn't say you must have an OSPF hierarchy with OSPF as the root term, and we don't. [01:00:29] Speaker 04: We pop OSPF into seven different hierarchies at different places in the order. [01:00:34] Speaker 04: That's the crucial, that's the key to the case. [01:00:36] Speaker 04: The only part of the district court's case, the district court's opinion. [01:00:40] Speaker 04: I'm sorry, I'm going way over my time, Your Honor. [01:00:42] Speaker 04: We're going to let you finish your one thought. [01:00:44] Speaker 04: To finish, if you, I want to commend you, Your Honor. [01:00:47] Speaker 04: Appendix 54-390. [01:00:49] Speaker 04: It's a simple page, Your Honor, where you can see it's HP's user manual. [01:00:54] Speaker 04: There's three columns that show you you could do the same function three different ways. [01:00:59] Speaker 04: We had copious evidence that you could do things different ways. [01:01:02] Speaker 04: Mr. Schafer from Juniper said, I did it differently at Juniper. [01:01:05] Speaker 04: I arranged my commands differently. [01:01:08] Speaker 04: We had Mr. Venkatrampan from HP, through whom page 54-390 was admitted, and he said, oh, yes, different engineers. [01:01:16] Speaker 04: in the same company could arrange the commands across different hierarchies in different ways. [01:01:23] Speaker 04: The left-hand column and the middle column on page 54-390 are two different HP command lines in the same company. [01:01:29] Speaker 00: Okay. [01:01:30] Speaker 00: So looking at that page, it happens to use the term that I was referring to, show version. [01:01:34] Speaker 00: Right, Your Honor. [01:01:35] Speaker 00: And if. [01:01:35] Speaker 00: Show version uses show version. [01:01:37] Speaker 00: Commware uses display version and Cisco uses show version. [01:01:42] Speaker 00: But the question [01:01:43] Speaker 00: is, does the industry protocol suggest that show version is the right term? [01:01:48] Speaker 04: It doesn't suggest it, and it certainly doesn't require it. [01:01:51] Speaker 00: No, in require, nobody seems to be arguing. [01:01:54] Speaker 00: But suggest it, that's a different question. [01:01:56] Speaker 04: Your Honor, the key to this case is it's the order that matters, not the... The word show may... It may suggest that you use the word show. [01:02:04] Speaker 04: That does not dictate that you put show in any particular hierarchy. [01:02:08] Speaker 04: And this illustrates that you can do it three different ways. [01:02:10] Speaker 04: It was admitted by Arista's own witnesses that you could arrange things in different ways. [01:02:15] Speaker 04: That's why there's no sense of fair here. [01:02:18] Speaker 04: So, Your Honor, if there are no further questions, we respectfully suggest that if you don't reverse here, you're letting Arista do through the back door what you said Google could not do through the front door in Oracle v. Google, and that is to hold that effectively user interfaces are uncopyrightable. [01:02:34] Speaker 04: We respectfully suggest that you reverse and remand for further proceedings. [01:02:37] Speaker 01: Thank you, Your Honor.