[00:00:21] Speaker 00:
Okay, the next case before the court is Intellectual Ventures versus Symantec.

[00:00:29] Speaker 00:
It is case number 171814.

[00:00:33] Speaker 00:
It is an appeal from judgment of the District of Delaware with respect to two separate patents.

[00:00:45] Speaker 00:
There is a cross-appeal, though it's a conditional cross-appeal, I guess.

[00:00:49] Speaker 00:
Is that fair to say?

[00:00:51] Speaker 00:
All right.

[00:00:52] Speaker 00:
And you wanted to reserve the possibility of a minute for rebuttal if, in fact, the cross-appeal gets addressed in your friend's rebuttal.

[00:01:03] Speaker 00:
Is that right?

[00:01:03] Speaker 02:
Yes.

[00:01:03] Speaker 00:
Thank you, Your Honor.

[00:01:05] Speaker 00:
OK.

[00:01:05] Speaker 00:
So we'll try to work that out.

[00:01:08] Speaker 00:
As you know, we don't always let the lawyers control the clock in the long run.

[00:01:13] Speaker 00:
And Mr. Lahad, is that pronounced correctly?

[00:01:16] Speaker 00:
Yes, Your Honor.

[00:01:16] Speaker 00:
You are hoping for five minutes of rebuttal?

[00:01:19] Speaker 00:
Yes, Your Honor.

[00:01:19] Speaker 00:
OK.

[00:01:20] Speaker 00:
You can begin.

[00:01:21] Speaker 03:
Good morning.

[00:01:22] Speaker 03:
I'm John Laha for Appellants, and may it please the court.

[00:01:25] Speaker 03:
The 533 patent is eligible for patenting because it discloses an improvement in real-time remote data mirroring.

[00:01:32] Speaker 03:
And it does so in a non-conventional way using, among other elements, a non-volatile data buffer in a DTU, Data Transfer Unit, and the issuance of spoof packets.

[00:01:44] Speaker 05:
In the blue brief, IV says, claim 25 claims a novel way of solving a problem.

[00:01:52] Speaker 05:
if there's a disruption to the primary network server or the substantially concurrent copy of the data in the data transfer unit would be available for use even before the copying to the remote system is complete.

[00:02:03] Speaker 05:
Yes.

[00:02:05] Speaker 05:
But we've held previously that similar requirements that a task happen contemporaneously doesn't make the claims patent eligible.

[00:02:18] Speaker 05:
And that's Alice itself.

[00:02:22] Speaker 05:
and you can see updating shadow records in real time in electric power, how does Ivy get around that clear precedent that's found that concurrent copies are directed to an abstract idea?

[00:02:37] Speaker 03:
Number one, the patent is not simply directed to a concurrent copy.

[00:02:41] Speaker 03:
The prior art methods of computer data backup suffer... No, no, but just answer my concurrent copy question.

[00:02:48] Speaker 05:
How do you get around that?

[00:02:51] Speaker 05:
That's claim 25.

[00:02:52] Speaker 03:
If the patents were, assuming the patents are drawn to a concurrent copy, which I disagree with that.

[00:02:57] Speaker 03:
But if they are, and that's an abstract idea, then the claims survive under step two, because they provide an inventive implementation detail of how to solve this problem.

[00:03:07] Speaker 05:
It isn't really just.

[00:03:08] Speaker 05:
OK.

[00:03:09] Speaker 05:
So if you go to step two, how does the data shadowing concurrent copy technique that were already in existence provide a sufficient inventive concept?

[00:03:20] Speaker 03:
Well, just to be clear, the patent involves data mirroring.

[00:03:25] Speaker 03:
Data shadowing is another term of art that is not covered by the patent.

[00:03:28] Speaker 03:
There is a distinction just to make that.

[00:03:31] Speaker 03:
But under step two, the claims provide a specific computer-based solution to this computer-based problem using implementation details.

[00:03:44] Speaker 03:
Unlike other cases, the claims in this case, claim 25, provides

[00:03:50] Speaker 03:
detailed steps provides the ordinary skilled artisan with how to accomplish improvement.

[00:03:55] Speaker 00:
I think what the trial court said was these are all interesting ideas that you're espousing but they don't actually show up in the words of the claims.

[00:04:05] Speaker 00:
And when you look at the claims, the claims are very general and even your specification refers to off-the-shelf well-known computer technology.

[00:04:18] Speaker 03:
claims actually deliver the advantages discussed in the patent.

[00:04:24] Speaker 03:
The patent describes the shortcomings of the prior art, describes the shortcomings of data backup, of doing overnight backup, using tapes.

[00:04:33] Speaker 05:
What's the ordered combination in step 25?

[00:04:37] Speaker 03:
You've got data on the primary service order.

[00:04:41] Speaker 05:
Is there a particular order of steps?

[00:04:43] Speaker 03:
I think there is.

[00:04:44] Speaker 03:
I think certain steps have to happen before other steps, for example,

[00:04:47] Speaker 03:
The data from the primary network server.

[00:04:49] Speaker 05:
Where in claim 25 does it say that it has to happen in a particular order?

[00:04:56] Speaker 03:
Well, I think it's inherent in the way the data must be processed.

[00:04:59] Speaker 03:
You have to look at the claim.

[00:05:00] Speaker 03:
The first step is you've got the data in the primary network server.

[00:05:04] Speaker 03:
That's copied to the non-volatile data buffer in the DTU.

[00:05:08] Speaker 03:
And then the DTU transmits the data over the communications link to the remote server store.

[00:05:14] Speaker 03:
And then there's a spoof packet that is sent back to the primary network server that essentially tells the primary network server that the save to the remote has been completed, even though it technically has not.

[00:05:27] Speaker 03:
It just allows the primary network server to proceed with business as usual.

[00:05:31] Speaker 00:
You didn't debate that any of those things weren't well known in the prior art, including the spoof packet, right?

[00:05:38] Speaker 03:
Well, I think the implementation of the spoof packet here

[00:05:40] Speaker 03:
is novel and inventive and is not used in the prior art.

[00:05:43] Speaker 03:
Same thing with the DTU.

[00:05:44] Speaker 03:
Computers, as a matter of course, do not have DTU.

[00:05:46] Speaker 00:
But where in the claim does it say that?

[00:05:50] Speaker 03:
The claim references the non-volatile data buffer of the DTU.

[00:05:54] Speaker 03:
It also references the spoof packet.

[00:05:55] Speaker 03:
Now, an alternative could be to use a volatile storage in the DTU and say, well, instead of using a non-volatile storage like a flash drive or a hard disk, we would use DRAM.

[00:06:08] Speaker 03:
And you would use that?

[00:06:09] Speaker 00:
I guess my problem is I'm searching as I might to find anything that it says that is an unusual way to use those things.

[00:06:23] Speaker 03:
I think the unusual way to use those things is computers do not have data transfer units as a matter of course.

[00:06:30] Speaker 03:
Computers do not use spoof packets as a matter of course.

[00:06:33] Speaker 03:
So if you believe that a DTU and a spoof packet are conventional, then the combination of

[00:06:38] Speaker 03:
these elements is inventive.

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And unlike other cases, the combination of these elements provides implementation detail.

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It provides a specific sequence of steps to achieve the desired result.

[00:06:50] Speaker 03:
We're not just saying back up the data and reclaiming the functional result.

[00:06:55] Speaker 03:
An ordinary skilled artisan could use the elements of this claim to achieve the advantages of the invention.

[00:07:03] Speaker 00:
Can you show me where in the spec there is a description that use of

[00:07:08] Speaker 00:
DTUs and spoof packets is not well known or conventional in the prior art?

[00:07:15] Speaker 03:
If you look in the specification, I think it's at column two, or actually it's column six, that describes what the DTU is.

[00:07:24] Speaker 03:
The DTU is not an overlap of the primary server's store.

[00:07:29] Speaker 03:
What lines?

[00:07:30] Speaker 03:
I'm sorry, this is appendix 133, excuse me, 135.

[00:07:35] Speaker 03:
It goes into

[00:07:36] Speaker 03:
significant detail as to what the DTU is.

[00:07:40] Speaker 03:
Wait, wait, wait.

[00:07:41] Speaker 05:
Where?

[00:07:42] Speaker 03:
I mean, come on.

[00:07:43] Speaker 03:
Apologies.

[00:07:44] Speaker 03:
Column 6, if you focus lines 46 through 57 or so, it discusses what the DTU is, what a data transfer unit.

[00:07:57] Speaker 03:
It's not merely just a section of the hard drive.

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It's not merely implemented in software.

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It's not a line of code.

[00:08:03] Speaker 03:
It is a

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It's an instantiation of at least one microprocessor and a block of RAM, which is accessible by the microprocessor.

[00:08:13] Speaker 03:
And it goes through and it explains what the DTU is and what the requirements of the DTU are.

[00:08:21] Speaker 03:
Then that claim is that element, the DTU.

[00:08:24] Speaker 00:
Are you saying that, I mean, those all seem to be basic concepts.

[00:08:30] Speaker 00:
Got a block of RAM that's accessible by the microprocessor.

[00:08:33] Speaker 03:
Right, so the DTU is composed of a microprocessor and DRAM.

[00:08:39] Speaker 03:
But again, DTUs aren't available and don't just come in off-the-shelf computers.

[00:08:45] Speaker 03:
You don't go to the computer store and get a computer or a laptop that has an onboard DTU.

[00:08:53] Speaker 03:
Likewise with the spoof packet.

[00:08:55] Speaker 01:
Are you saying this is an unusual or unknown or innovative arrangement of these components?

[00:09:01] Speaker 03:
Absolutely.

[00:09:02] Speaker 03:
Absolutely.

[00:09:04] Speaker 03:
Countless other cases that have found that you can have an unusual and inventive combination of known elements.

[00:09:12] Speaker 00:
What evidence did you present to the trial court arguing that this is an unusual DTU and an unusual use of the DTU?

[00:09:29] Speaker 03:
We have declarations from our expert, Mr. Webster, who provided that

[00:09:32] Speaker 00:
All right, and so where in his declaration does he say that BTUs were not well known?

[00:09:42] Speaker 05:
Or arose by any other name.

[00:10:06] Speaker 03:
Your Honor, I apologize.

[00:10:07] Speaker 03:
I'm having trouble finding that exact site.

[00:10:09] Speaker 03:
If I could have a minute when I sit down and come back up, I'll find that.

[00:10:14] Speaker 03:
But to your comment, Your Honor, about a ROSE by another name, it's not a ROSE by another name.

[00:10:20] Speaker 03:
It is a specific component of this claimed method.

[00:10:26] Speaker 03:
There is no ROSE by another name for a spoof pack or a DTU.

[00:10:28] Speaker 03:
It's not a term of art like microprocessor or DRAM.

[00:10:33] Speaker 03:
It is a data transfer unit that has its own components.

[00:10:36] Speaker 05:
those components may be used in the same way for the same purpose.

[00:10:42] Speaker 05:
That's my question.

[00:10:43] Speaker 00:
This is not the way you argued this in your briefing.

[00:10:49] Speaker 00:
Am I correct?

[00:10:52] Speaker 03:
As far as the DTU?

[00:10:53] Speaker 00:
Yes.

[00:10:54] Speaker 03:
I think we do argue that the combination of these elements is inventive.

[00:11:00] Speaker 03:
passes muster under step two.

[00:11:01] Speaker 00:
Combination of what elements?

[00:11:03] Speaker 00:
Elements that make up the DTU or the DTU with other things, with the spoof packet?

[00:11:09] Speaker 03:
The former, the DTU with the spoof packet in the context of these specific series of steps.

[00:11:18] Speaker 00:
OK.

[00:11:19] Speaker 00:
You're into your rebuttal.

[00:11:20] Speaker 00:
You want to save it?

[00:11:22] Speaker 03:
Yes.

[00:11:25] Speaker 00:
OK.

[00:11:25] Speaker 00:
Well, actually, I take that back.

[00:11:27] Speaker 00:
I thought you would ask for five minutes, didn't you?

[00:11:30] Speaker 00:
Yes, ma'am.

[00:11:31] Speaker 00:
Okay, so you are into your bottle.

[00:11:43] Speaker 02:
Judge Romali, may it please the court?

[00:11:46] Speaker 02:
This patent, the 533 patent, is a paradigmatic example of taking an abstract model, what the patent itself even says is an abstract model, and taking it from one computer context to another.

[00:11:59] Speaker 02:
So just to clarify the background of it, there were three prior art systems discussed in this patent.

[00:12:05] Speaker 02:
One was electronic vaulting in the mainframe context.

[00:12:09] Speaker 02:
The other two were tape data backups.

[00:12:13] Speaker 02:
And the third was also similarly end of day type of backups.

[00:12:19] Speaker 02:
The data shadowing is what it was called.

[00:12:22] Speaker 02:
And so what I want to focus on here is the first of those.

[00:12:25] Speaker 02:
Electronic vaulting by the patent's own admission

[00:12:28] Speaker 02:
does all of the things that are claimed to be inventive here.

[00:12:33] Speaker 02:
And that is a very up-to-date backup copy and a safe distance away.

[00:12:38] Speaker 00:
Well, what's your response to his argument where he ended up, which is that the real inventiveness here is a particular form of DTU combined with a particular form of spoof packet, which was not well-known and conventional in the art.

[00:12:54] Speaker 02:
So I think your honor is correct at that.

[00:12:56] Speaker 02:
individual component was never called out as something different or novel.

[00:13:01] Speaker 02:
And that's the first time that I had heard this.

[00:13:03] Speaker 02:
I would point the court to their papers below in the summary judgment papers where they expressly acknowledged that every single one of those was convention.

[00:13:11] Speaker 02:
That's docket entry number 299.

[00:13:14] Speaker 02:
The very first page of it comes right out and says each of those are quote well-known.

[00:13:19] Speaker 02:
Have we got that in the appendix by any chance?

[00:13:21] Speaker 02:
It's not in the appendix because

[00:13:23] Speaker 02:
I apologize, John.

[00:13:23] Speaker 02:
This is the first time I'm hearing that it might be novel.

[00:13:26] Speaker 02:
So I just wanted to provide that.

[00:13:28] Speaker 02:
I'm happy to submit that to the court if that would be helpful.

[00:13:30] Speaker 02:
But the district court did reference that concession at page A46 of its opinion and saying, IB doesn't point out that any of these are unconventional.

[00:13:41] Speaker 05:
Like a lawyer knows his record.

[00:13:42] Speaker 00:
Individual components.

[00:13:44] Speaker 00:
Correct.

[00:13:45] Speaker 00:
It could be conventional, but the way they're put together could be.

[00:13:49] Speaker 02:
Absolutely.

[00:13:49] Speaker 02:
And so when I answer that part of your honor's question, I just wanted to clarify the first part, the individual part, and then turning now to the combination.

[00:13:56] Speaker 02:
What you have to do is look at what the patent itself does, or in this case doesn't say, is the innovation.

[00:14:03] Speaker 02:
It nowhere says that this particular combination somehow provides advantages over electronic vaulting.

[00:14:11] Speaker 02:
To the contrary, it says, all we're doing with this patent is taking electronic vaulting and, in the patent's words, porting it into a different technological context, doing it on the network.

[00:14:22] Speaker 02:
And we know from dozens of cases from Alice on that merely plopping it into another technological environment without describing anything unique or inventive about implementing it in that environment isn't enough.

[00:14:34] Speaker 02:
And I would point the court, for example, to another IV semantic case that came before this court.

[00:14:39] Speaker 02:
where one of the patents was directed to data virus scanning or computer virus scanning.

[00:14:45] Speaker 02:
And the purported innovation there was to take it from one context, the local computer context, and instead perform it on the network on a server.

[00:14:53] Speaker 02:
And this was found that that abstract concept, that abstract computer concept of virus scanning doesn't become inventive merely by saying, do it out there on the network.

[00:15:03] Speaker 02:
And the same, I would submit, is true here.

[00:15:06] Speaker 02:
That combination is nowhere described as inventive.

[00:15:08] Speaker 02:
IV certainly hasn't pointed to any expert testimony in any of its briefs before this court.

[00:15:13] Speaker 02:
And I don't believe before the district court below.

[00:15:16] Speaker 02:
But certainly, everything they relied on in this court was all the intrinsic record of the specification.

[00:15:22] Speaker 02:
And there is nothing in there.

[00:15:24] Speaker 02:
And in fact, it goes through in laborious detail in describing how each of these components are purely conventional.

[00:15:30] Speaker 02:
For example, mirroring data.

[00:15:33] Speaker 02:
It says every single operating system, network operating system, has this capability.

[00:15:38] Speaker 02:
We're just going to use that.

[00:15:40] Speaker 02:
And again, coming back to the mainframe context, this was all done long ago.

[00:15:44] Speaker 02:
And if you look at their yellow brief at page 16, that's the one part where they tried to distinguish that I could find clearly the electronic vaulting.

[00:15:54] Speaker 02:
And all they say is it's different because it's not in the mainframe context, it's in the network context.

[00:16:01] Speaker 02:
No description of how that might provide benefits, how these claims might provide benefits in the network context, nothing of that sort.

[00:16:08] Speaker 02:
So I would submit this falls directly in line with this court's cases where other real-time type data processing has been found ineligible, including a recent case, the two-way media case, which actually had one step of copying a real-time media stream to an intermediate server.

[00:16:26] Speaker 02:
It had that step in there, and ultimately this court found that

[00:16:29] Speaker 02:
As a whole, they were directed to basic data processing things, and here it's even more basic.

[00:16:34] Speaker 02:
It's copy, copy, copy, and send a signal.

[00:16:37] Speaker 02:
And that signal is the spoof packet.

[00:16:39] Speaker 02:
That too, even before this court was acknowledged to be conventional on page 28 of their blue brief, they say, or they acknowledge that it was wholly conventional even to do it at certain times in the process.

[00:16:52] Speaker 02:
And to your Honor's question, I don't believe that there is any ordering required by claim 25, and that's

[00:16:59] Speaker 02:
most clearly shown because claim 26 does have certain ordering of when the spoof packet must be sent and so on.

[00:17:07] Speaker 02:
So by implication, claim 25 has no such ordering.

[00:17:10] Speaker 02:
And spoof packets are wholly conventional by IV's admission, by IV's expert admission at A5045, I believe.

[00:17:20] Speaker 02:
And so there's nothing unconventional about this, either individually or in combination.

[00:17:27] Speaker 00:
your friend on the other side get to the 131.

[00:17:31] Speaker 00:
But I do want to ask you a question about it, because one of the parts that I think is most compelling from the other side is the argument that they should have been allowed to at least amend their infringement contentions to assert a doctrine of equivalence claim.

[00:17:47] Speaker 00:
And amendments are supposed to be freely given, barring a conclusion that it really would be futile

[00:17:56] Speaker 00:
So why is it that we shouldn't conclude that they should have been allowed to at least try to plead a DOE claim?

[00:18:03] Speaker 02:
And so to your Honor's question, they actually were permitted to amend their infringement contentions over our objection.

[00:18:09] Speaker 00:
But then they were stricken.

[00:18:10] Speaker 02:
They were ultimately stricken because they were deficient.

[00:18:13] Speaker 02:
And here's what they did when they amended it.

[00:18:16] Speaker 02:
They failed to comply with most basic tenants of DOE law, which is you must deal with all of the limitations.

[00:18:24] Speaker 02:
Even if you say there's an equivalent to it, you have to do it.

[00:18:26] Speaker 02:
And they did the opposite here.

[00:18:27] Speaker 02:
What they said is there are certain limitations that are simply not material.

[00:18:31] Speaker 02:
And respectfully, you're not allowed to simply dismiss those.

[00:18:35] Speaker 02:
You need evidence on a claim by claim or element by element basis of how this thing is equivalent.

[00:18:40] Speaker 02:
And they failed to do that.

[00:18:41] Speaker 02:
And so I think the district court was fully within its discretion to not allow them to amend again.

[00:18:47] Speaker 02:
And they actually didn't request to amend again.

[00:18:49] Speaker 02:
They stood on the notion that they don't have to address all of the elements.

[00:18:54] Speaker 02:
It's enough for them to say those are immaterial in the context of this case.

[00:18:58] Speaker 02:
And we submit that that is absolutely not true under DOE principles.

[00:19:03] Speaker 01:
So what happens under the local rules, they amended their contentions.

[00:19:08] Speaker 01:
They didn't amend the complaint.

[00:19:09] Speaker 01:
They amended their contentions.

[00:19:11] Speaker 01:
But that put the issue in play, DOE in play, if in fact they on the face asserted what you need to assert for DOE claim, correct?

[00:19:23] Speaker 02:
We didn't contest that at that point.

[00:19:25] Speaker 02:
Once it was allowed to be amended in the contentions, the assumption by everybody was it's now part of the case, as long as they sufficiently included it, which the district court correctly found that they didn't.

[00:19:36] Speaker 02:
And just one other thing I would want to point out on this issue.

[00:19:39] Speaker 02:
I'm not sure the court even needs to reach that issue, because in the stipulation as to the 131 patent, they stipulated that under the district court's construction, so assuming the court agrees with the 131 construction,

[00:19:51] Speaker 02:
Under the district court's construction, there is no infringement literally or under the doctrine of equivalence.

[00:19:58] Speaker 02:
Now, my friend on the other side says, well, in the stipulation, we also said we intended to appeal the striking of the DOE contentions.

[00:20:05] Speaker 02:
And that's true.

[00:20:06] Speaker 02:
But what that means is they can appeal that insofar as the construction is disrupted.

[00:20:12] Speaker 02:
The stipulation by its plain term says, if the construction stands, literal and DOE infringement are both out.

[00:20:19] Speaker 02:
Can I ask you something?

[00:20:20] Speaker 02:
Certainly.

[00:20:21] Speaker 00:
What exactly is a non-final judgment?

[00:20:24] Speaker 00:
I've never heard of such a thing.

[00:20:26] Speaker 00:
I mean, I've heard of partial final judgments under 54B, or I've heard of sending up a non-final conclusion for review under 1292.

[00:20:41] Speaker 00:
But how is there such a thing as a non-final judgment?

[00:20:46] Speaker 02:
To be honest, Your Honor, I'm not sure, other than to say it's akin to an order, it's akin to an opinion along the way, if something is truly non-final.

[00:20:54] Speaker 02:
And I think it's a function, you look at it functionally, either it's final or it's not.

[00:20:59] Speaker 00:
If you label it as something or the other, I'm not sure that that... So we should, should we just construe it as an order accepting the stipulation for purposes of entering a judgment later?

[00:21:10] Speaker 02:
I guess that's one way to... Because if it really was a judgment, and

[00:21:16] Speaker 00:
didn't fall under any of those other categories, then presumably the time to appeal should have started then, even though you guys called it non-final.

[00:21:24] Speaker 02:
I think that that would be correct.

[00:21:25] Speaker 02:
So the court may ultimately conclude that there's not even jurisdiction over that.

[00:21:29] Speaker 02:
We obviously didn't press that issue, but we have the violation of the stipulation.

[00:21:36] Speaker ?:
Right.

[00:21:38] Speaker 02:
Right.

[00:21:39] Speaker 02:
So unless the court has additional questions, I would just note, as the court did at the beginning, that we do raise a conditional cost appeal issue.

[00:21:47] Speaker 02:
The court doesn't need to address it if it otherwise affirms, and we think it should.

[00:21:52] Speaker 02:
But if it does choose to look at it, we think the Berkheimer case, the recent decision from this court, is directly on point in saying what is an indefinite term.

[00:22:02] Speaker 02:
It actually mentioned the word substantial in that case, although it also focused on the word minimal.

[00:22:08] Speaker 02:
substantial as well.

[00:22:09] Speaker 02:
Those are terms of degree.

[00:22:12] Speaker 00:
But not every term of degree is indefinite, depending on the circumstances.

[00:22:15] Speaker 02:
Absolutely.

[00:22:15] Speaker 02:
So you need to look to the next step of that analysis in that case, which was, is there enough in the spec to say, quote, how much?

[00:22:22] Speaker 02:
And I think there's really no contention here that there is any sort of how much as to substantial concurrence in this case.

[00:22:29] Speaker 02:
In other words, how much delay between two steps

[00:22:31] Speaker 02:
is too much.

[00:22:32] Speaker 00:
But if the court's construction was correct and we're talking about a processing delay, then that inherently has limitations on it.

[00:22:38] Speaker 00:
It's not like a circumstance where it's completely open ended.

[00:22:43] Speaker 02:
It does have some limitations inherently, but Ivey's expert, Mr. Webster, said that that processing delay could last a minute, an hour, a year.

[00:22:53] Speaker 02:
He volunteered that in his deposition.

[00:22:55] Speaker 02:
And so in that context where there really is no theoretical maximum,

[00:23:01] Speaker 02:
we would submit that the patent was intending to do something other than that.

[00:23:04] Speaker 02:
And I think it's best looked at as a term of degree, but even looked at as a term of causation as they pressed, we would submit that it would still be indefinite.

[00:23:13] Speaker 02:
And with that, unless the court has questions, I'll reserve potentially one minute.

[00:23:20] Speaker 02:
Thank you.

[00:23:23] Speaker 03:
First, Your Honors, let me correct my misstatement earlier.

[00:23:26] Speaker 03:
the, there was no extra declaration in support of the conventional components aspect.

[00:23:30] Speaker 03:
Uh, Mr. Webster submitted declarations in support of the infringement case and in support of claim construction, particularly the indefinite.

[00:23:37] Speaker 05:
There's no evidence in support of that point.

[00:23:41] Speaker 03:
There is no evidence by an expert.

[00:23:43] Speaker 03:
Uh, again, it's just the intrinsic record.

[00:23:45] Speaker 03:
That is the evidence.

[00:23:46] Speaker 00:
Uh, you don't need to bother with the non-final judgment thing.

[00:23:49] Speaker 00:
I was just going off and I'm a nerd when it comes to jurisdiction.

[00:23:53] Speaker 00:
So.

[00:23:56] Speaker 03:
You heard this argument that this is just electronic vaulting ported over to the network.

[00:24:02] Speaker 03:
That's not correct.

[00:24:04] Speaker 03:
And in fact, the specification, this is at appendix 133 in the first full paragraph in column two, talks about electronic vaulting and says that the electronic vaulting hardware and software cannot be used in the client network topology.

[00:24:21] Speaker 03:
So this idea of just simply

[00:24:23] Speaker 03:
that the claim is simply porting over electronic vaulting to the client server network topology is just incorrect.

[00:24:36] Speaker 03:
As in core wireless, as in visual memory, as in Finjin and Infish, these claims

[00:24:46] Speaker 03:
provide an improvement over the prior art.

[00:24:49] Speaker 03:
They improve the way a computer works.

[00:24:51] Speaker 03:
In this case, they improve the way that computers back up data.

[00:24:55] Speaker 03:
This is not simply taking an idea, like backing up data, and saying, do it on a computer.

[00:25:02] Speaker 03:
You cannot apply that framework here.

[00:25:05] Speaker 03:
There are certain things that are computer problems.

[00:25:09] Speaker 03:
This is a computer problem.

[00:25:11] Speaker 03:
The problem was that the prior art methods did not

[00:25:16] Speaker 03:
or risked recently created data to loss.

[00:25:21] Speaker 03:
If you backed up data at 2 AM, you would lose the entire day's worth of data if there was an issue at 5 PM.

[00:25:29] Speaker 03:
And so this real-time data mirroring claim is an improvement in computer functionality.

[00:25:35] Speaker 03:
It's not just a claim.

[00:25:36] Speaker 04:
Real-time data backup was going on at the time.

[00:25:41] Speaker 04:
Not remotely.

[00:25:42] Speaker 03:
Not remotely, Your Honor.

[00:25:44] Speaker 03:
Not remotely.

[00:25:46] Speaker 03:
And the claim is not just do data backup substantially concurrent remotely.

[00:25:53] Speaker 03:
Then we get into step two.

[00:25:54] Speaker 03:
It is a specific way of doing remote data mirroring.

[00:26:00] Speaker 03:
There are other ways to do it.

[00:26:02] Speaker 03:
Using conventional inputs.

[00:26:07] Speaker 03:
If your position is that the elements are conventional, then I would submit that the ordered combination of the elements is not conventional.

[00:26:16] Speaker 03:
This is a specific way to perform these tasks.

[00:26:20] Speaker 03:
This is different than other cases where it's just, here is a result.

[00:26:24] Speaker 03:
The difference here is that the level of specificity provides sufficient implementation detail to achieve the improvement discussed in the specification.

[00:26:35] Speaker 03:
So this is in stark contrast to other cases, like electric power, where it was just collect some data and present it, like content extraction, which is organized data.

[00:26:46] Speaker 03:
And I think what's important is that in the step two analysis, there are other ways to do it.

[00:26:50] Speaker 03:
Meaning that step two, the claim is not unduly preemptive.

[00:26:54] Speaker 03:
As I said, you could use a volatile storage if you wanted additional performance and speed at the expense of fault tolerance and reliability.

[00:27:00] Speaker 03:
You could forgo with the spoof packet if you wanted less aggressive timing.

[00:27:07] Speaker 03:
Or you could perform on the issue of, I'm sorry, or you could what?

[00:27:16] Speaker 03:
I started and stopped.

[00:27:18] Speaker 03:
Thank you.

[00:27:23] Speaker 03:
I do want to touch, if I can, on the summary judgment issue.

[00:27:30] Speaker 03:
It was a classic fact question that the court took away from the jury.

[00:27:33] Speaker 03:
And the question was whether or not these steps in the accused product happened substantially concurrently.

[00:27:39] Speaker 03:
The court held that the presence of this intervening step, which

[00:27:46] Speaker 03:
Our experts said in Symantec's documents say it happened simultaneously.

[00:27:51] Speaker 03:
The court held that a simultaneous step was not substantially concurrent.

[00:27:55] Speaker 00:
But didn't your expert also say that if you design in a delay, that by definition, that was not substantially concurrent?

[00:28:03] Speaker 03:
That's not exactly what he said.

[00:28:06] Speaker 03:
That's not what he said.

[00:28:07] Speaker 03:
He said that there are other ways to design this and that there are other ways to achieve this in the accused product.

[00:28:15] Speaker 03:
But his opinion has always been that this product performs the steps substantially concurrently.

[00:28:21] Speaker 03:
This distinction between designed-in delay and process delay was something that the court came up with.

[00:28:28] Speaker 00:
But you asked the court to say that the delay had to be causally related, right?

[00:28:36] Speaker 03:
Yes, we did argue that.

[00:28:38] Speaker 00:
And you said, so it's either caused by a processing delay, or it's caused by something else, and your expert

[00:28:46] Speaker 00:
agreed that if you design in a pause, then it's not caused by just a processing delay.

[00:28:51] Speaker 03:
The distinction is whether the delay is occasioned by performance or execution of the program or processing data or, and that's necessary to the operation of the program, or if the delay is arbitrary or based on some external trigger.

[00:29:09] Speaker 03:
If the delay is waiting until two o'clock in the morning or waiting until network traffic subsides,

[00:29:15] Speaker 03:
that moves away from substantially concurrent.

[00:29:18] Speaker 03:
If the delay is, whether or not it's designed in, if it's, as we have in this case, a simultaneous action, if that delay is associated with the performance of the program, or if it's required for the program, for example, in this case, it's remote write setup, it's part of the process, you can have a delay that is for recovery time, as our expert opines at appendix 926.

[00:29:43] Speaker 03:
There are such things as designed in delays that serve a function.

[00:29:47] Speaker 03:
Simply the fact that an accused product is designed a certain way does not preclude substantial concurrence.

[00:29:56] Speaker 03:
So that question was taken away from the jury in this case.

[00:30:00] Speaker 00:
What's your response with respect to the cross appeal to your expert's statement that a processing delay could be anywhere from a minute to a year?

[00:30:09] Speaker 03:
Well, the response is,

[00:30:13] Speaker 03:
our expert has always been faithful to the court's claim construction and to our argument that causation matters.

[00:30:22] Speaker 03:
He was posed questions during his deposition about what if the processing required an hour, if the program needed an hour to do its thing.

[00:30:32] Speaker 03:
That hour, if it's working, if the delay is caused by processing, it still falls within the idea of substantial concurrence.

[00:30:39] Speaker 03:
The idea that

[00:30:41] Speaker 03:
an ordinary skilled artisan would not know what substantially concurrent means in the light of this specification, it doesn't pass muster.

[00:30:49] Speaker 00:
Okay, you're way over time.

[00:30:50] Speaker 00:
I didn't realize that.

[00:30:51] Speaker 00:
I better move my water bottle out in front of the clock.

[00:30:55] Speaker 00:
All right, you'll get one minute for your bottle.

[00:31:01] Speaker 02:
Thank you, Your Honor.

[00:31:02] Speaker 02:
Just very briefly on the indefiniteness point, I think

[00:31:06] Speaker 02:
It's illustrative that IV's position has continued to shift on what counts as a processing delay.

[00:31:13] Speaker 02:
So the expert, you were exactly right, Your Honor.

[00:31:16] Speaker 02:
The expert said that the two steps to be substantially concurrent must be done, quote, as fast as it can and as soon as it can.

[00:31:24] Speaker 02:
There must be, quote, no other things that aren't necessary.

[00:31:30] Speaker 02:
And the step intervening here

[00:31:32] Speaker 02:
was undisputably unnecessary by the expert's own admission.

[00:31:36] Speaker 02:
It could have been designed differently without that intervening step.

[00:31:39] Speaker 02:
And there are actually benefits to having that intervening step.

[00:31:42] Speaker 02:
And so it wasn't just the notion of, well, there can't be a conscious delay, in other words, standing and waiting.

[00:31:48] Speaker 00:
But the intervening step has to occur in order for the system to process, right?

[00:31:53] Speaker 02:
It doesn't have to occur as designed, yes.

[00:31:56] Speaker 02:
But that just means it doesn't infringe.

[00:31:58] Speaker 02:
It doesn't have to occur for the two

[00:32:01] Speaker 02:
concurrent steps or allegedly substantially concurrent steps to occur.

[00:32:05] Speaker 02:
Those are independent of this setting up the remote right.

[00:32:09] Speaker 02:
So you have the substantially concurrent copy on the local server and those two happen at the same time.

[00:32:16] Speaker 02:
As the expert said, Mr. Webster said, you could have done it without that intervening step, the two end steps.

[00:32:21] Speaker 02:
In other words, are the two end steps done as fast as they can be?

[00:32:25] Speaker 02:
And here they ultimately weren't and that shift

[00:32:29] Speaker 02:
constant shift in position, it not only undermines their non-infringement or their infringement argument, but shows that this is indefinite.

[00:32:37] Speaker 02:
Thank you, Your Honor.