[00:00:01] Speaker 01: OK, our next case is Palo Alto Networks versus FinGen 17-2314. [00:00:10] Speaker 01: We did ask the parties to submit briefs on the SAS transitional issues, let's call them. [00:00:19] Speaker 01: What we'd like to do is to have each of you spend no more than two minutes and tell us about your brief and your views on that. [00:00:31] Speaker 01: And then afterwards, we'll get to the merits of the case. [00:00:33] Speaker 01: You'll have your complete time for that. [00:00:36] Speaker 01: So no more than two minutes for each side. [00:00:40] Speaker 01: Mr. Armand, if you could go first, please. [00:00:46] Speaker 03: May it please the court, with respect to the impact of SAS on the 151 IPR, we view the non-presidential decision in Polaris Industries versus Arctic Cat as providing some guidance here. [00:01:00] Speaker 03: We asked that the court at least remand, if not vacate and remand, the 151 decision because it's facially incomplete under Section 318A. [00:01:13] Speaker 03: The court did grant a motion in Polaris Industries about a week ago, choosing not to exercise jurisdiction and remanding so that the board could decide all claims and challenges. [00:01:25] Speaker 02: Do you agree that your case is a little bit different than that one? [00:01:28] Speaker 02: I think in that case, [00:01:30] Speaker 02: There was a situation where the arguments that were made showed that there was a relationship between the board's final written decision and its institution decision. [00:01:42] Speaker 02: You don't have a situation like that here, do you? [00:01:44] Speaker 02: And what I mean by that is the parties were arguing that there was an inconsistency in the board's reasoning in those two opinions. [00:01:52] Speaker 03: I agree, Your Honor, that the cases are factually dissimilar in that way. [00:01:56] Speaker 03: We do not have a similar situation here. [00:01:58] Speaker 03: We view this as a prudential question of whether the court should impose the final judgment rule on cases where fewer than all claims or grounds were decided after SAS. [00:02:13] Speaker 03: In the Inrei Aruna Chalun case, the court reiterated just in 2016 that it won't entertain jurisdiction over decisions from [00:02:26] Speaker 03: executive administrative agencies like the board, where there's not a proper final judgment. [00:02:32] Speaker 03: And all of the prudential reasons that were articulated in the Inrei Aruna Chalum case would apply here, both in terms of giving deference to the fact finder, in terms of avoiding piecemeal appeals, and also promoting efficient judicial administration. [00:02:50] Speaker 03: Uh, only other comment I have here is that. [00:02:53] Speaker 01: So your position is that the 151 IPR decision is effective in its entirety and it's ultra-various and should be vacated. [00:03:01] Speaker 00: Correct. [00:03:03] Speaker 00: So you're saying we can't even consider the claims that were instituted. [00:03:10] Speaker 03: I think under the final judgment rule, I'm only aware of two exceptions. [00:03:14] Speaker 03: One, collateral order doctrine and two, the Gillespie versus United States case. [00:03:19] Speaker 03: I don't think either one of those exceptions apply here. [00:03:21] Speaker 03: I don't think there's a proper final written decision. [00:03:23] Speaker 02: So you see this case as being a situation being analogous just to a final judgment in a district court. [00:03:30] Speaker 02: What about an analogy between a dismissal that occurred, a dismissal of some claims in district court, followed by a final decision on the merits of some claim? [00:03:41] Speaker 03: So I'm aware in the Henry Arthrex case, for example, the court found that a [00:03:48] Speaker 03: dismissal that resulted in an adverse judgment was final enough for the court to exercise jurisdiction over. [00:03:55] Speaker 03: I see the distinction there and here where there isn't a decision under 318A that comports with the requirements of SAS. [00:04:05] Speaker 03: But perhaps I'm not understanding your question, Your Honor. [00:04:08] Speaker 02: Yeah, it's all right. [00:04:09] Speaker 02: I was just throwing out a hypothetical. [00:04:11] Speaker 02: You were analogizing this situation to a district court case. [00:04:14] Speaker 02: But you could also analogize it to a district court case where [00:04:17] Speaker 02: There's a claim that's made. [00:04:19] Speaker 02: It's dismissed by the district court. [00:04:21] Speaker 02: And then later, and maybe it was dismissed incorrectly even, but later a district court dismisses or makes a determination on the merits with the remaining claims. [00:04:32] Speaker 02: And isn't that just as analogous as if a situation is the first one that you're referring to? [00:04:40] Speaker 03: Yes, I appreciate that analogy and agree that it's that's an equivalent. [00:04:45] Speaker 03: I see I'm past my time. [00:04:46] Speaker 01: Yes, okay. [00:04:54] Speaker 01: Thank you. [00:04:55] Speaker 01: Mr. Hannah. [00:04:56] Speaker 04: Mr. Honors, may I please report? [00:05:01] Speaker 04: In this situation here, we effectively have a final written decision that has addressed all claims that were challenged. [00:05:10] Speaker 04: The board found that the independent claims, including claims 6 and 10, were valid. [00:05:18] Speaker 04: It is impossible for the board to find dependent claims 9 and 12 invalid under a litany of cases, including the Sincor case that we cite in our papers. [00:05:33] Speaker 02: Is it true that those dependent claims 9 and 12 [00:05:37] Speaker 02: The petition raises an additional piece of prior art, doesn't it? [00:05:43] Speaker 04: It does raise an additional piece of prior art, but only for those dependent claims. [00:05:48] Speaker 04: Because the issue, that piece of prior art was not applied to the independent claims. [00:05:54] Speaker 02: So we would have to look at that prior art and look at the petition and verify that's true. [00:06:00] Speaker 02: It is a different ground of rejection, isn't it? [00:06:04] Speaker 04: It is a different ground of rejection, and it is an additional piece of prior art. [00:06:08] Speaker 04: But when you look at the petition, the only art that was cited for the independent claims has been addressed. [00:06:17] Speaker 04: And it's been addressed here. [00:06:18] Speaker 04: It's been addressed by the board. [00:06:20] Speaker 04: And that's what we're going to be arguing about after these two minutes. [00:06:24] Speaker 04: So there's nothing that the board can do that's going to change the outcome. [00:06:31] Speaker 04: It would essentially just be a rubber stamp of the independent, of the dependent claims saying that they're valid because the independent claims are valid. [00:06:40] Speaker 04: And that is a huge waste of judicial resources to have to remand to get a rubber stamp from the board that can't do anything else because their hands are tied for us to come back here and argue the exact same issues. [00:06:55] Speaker 04: It has to be the exact same issues because the petitioner is arguing [00:07:00] Speaker 04: that the independent claims are invalid, and they need to even to reach the dependent claims. [00:07:08] Speaker 04: So because it's an effective final written decision on all claims at issue, SAS doesn't apply, and we should proceed forward. [00:07:17] Speaker 01: All right. [00:07:18] Speaker 01: Well, we thank counsel for their views on these important issues, and we'll take them under consideration as we move forward with the case. [00:07:26] Speaker 01: So let's move on to the merits of 17-23-14-23-15. [00:07:29] Speaker 01: And you have reserved three minutes of your time for your vote, correct? [00:07:39] Speaker 03: Yes, Your Honor. [00:07:40] Speaker 03: All right. [00:07:41] Speaker 03: May it please the Court, I plan to address first the appeal from the 151 IPR. [00:07:47] Speaker 03: I also hope to spend some time addressing the appeal from the 1979 IPR. [00:07:54] Speaker 03: Both of these appeals are claim instruction based. [00:07:57] Speaker 03: Turning to the 151 IPR first, the claim language at issue is the content, including a call to a first function. [00:08:07] Speaker 03: And the key question at issue here is whether or not the board properly interpreted that limitation to require what it characterized a direct rather than an indirect call to a function. [00:08:22] Speaker 03: The key here is that the reference at issue Ross uses a technique called variable reassignment. [00:08:29] Speaker 03: If you look at the blue brief at page 39 or appendix 85, you'll see what that means. [00:08:35] Speaker 03: It means that there's a line in the code where Ross reassigns a variable calling an original function to equal a new function. [00:08:49] Speaker 02: Can I just make sure I understand what you're saying? [00:08:51] Speaker 02: You're saying that that assignment is a call as broadly defined by the PPL. [00:08:58] Speaker 03: Yes, your honor. [00:08:59] Speaker 03: And it's undisputed. [00:09:01] Speaker 03: I think this is significant. [00:09:02] Speaker 03: That's undisputed as covered at appendix 86 that Ross's hook function does cause the first or substitute function, the security checking function to provide a service. [00:09:16] Speaker 03: It does so indirectly in the sense that as a result of variable reassignment, the name of the original function is the one that is called, but the function that actually operates or executes is the replacement function. [00:09:34] Speaker 03: So what we have here is a security checking strategy where a suspect function is the variable assigned to that function is reassigned. [00:09:44] Speaker 03: to a security checking function that executes first. [00:09:48] Speaker 02: Is this where you're relying on the cross-examination testimony for the idea that when active X object is called or actually what's called is hook active X object? [00:10:00] Speaker 02: Do I understand that correctly? [00:10:01] Speaker 03: Yes. [00:10:01] Speaker 03: So Dr. Medvedevich made three admissions that the call is direct. [00:10:08] Speaker 03: Your Honor, just so I'm clear about our arguments, we have two separate arguments here. [00:10:13] Speaker 03: One is that [00:10:14] Speaker 03: the board's construction covers direct and indirect function calls, and that Ross satisfies the construction because there's nothing in the claim language that limits or requires only a direct function call. [00:10:29] Speaker 03: That's argument one. [00:10:30] Speaker 03: Argument two is that based upon Dr. Medvedevich's admissions, we have a direct function call here. [00:10:37] Speaker 03: And summarized in the gray brief of page 16, [00:10:42] Speaker 03: are those three admissions from Dr. Medvedevich, in which, in our view, he admitted that the function call is direct, in the sense that that's the effect of the variable reassignment. [00:10:53] Speaker 01: Does that include the hook function? [00:10:56] Speaker 01: I think the board found under Ross that that's not directly called. [00:11:01] Speaker 03: Yes, Your Honor. [00:11:02] Speaker 03: That is the hook function, and that's the whole issue in this case. [00:11:06] Speaker 03: The board's finding is that the strategy of variable reassignment [00:11:11] Speaker 03: results in what it characterized as an indirect call. [00:11:16] Speaker 03: And that's because the original function's name is still in the code. [00:11:22] Speaker 03: Our argument is that Dr. Medvedevich testified that what's actually occurring as a result of the variable reassignment is a direct function call to the first function. [00:11:32] Speaker 03: But more importantly, we think that we should prevail in this appeal based upon the language of the construction itself. [00:11:41] Speaker 03: This was a case where the board was deciding two IPRs concurrently on the same day. [00:11:47] Speaker 03: And in the 1979 IPR, its construction for call to a first function was a statement or instruction in the content, the execution of which causes the function to provide a service. [00:12:00] Speaker 03: So that's construction one. [00:12:02] Speaker 03: The other construction that the board originally entered in this case, in the 151 IPR, is that [00:12:09] Speaker 03: a statement or instruction in a program requesting the services of a particular IE first function. [00:12:16] Speaker 03: So the original construction that the board admitted was incorrect required calling a particular function. [00:12:26] Speaker 03: The board moved off of that language admitting that it was incorrect and erroneous to have two different constructions for the same term and two IPRs decided the same day. [00:12:36] Speaker 03: And it moved to the construction in the 1979 case. [00:12:40] Speaker 03: The language of its construction in the 1979 case, and this is an appendix 3980, doesn't require calling a particular function. [00:12:49] Speaker 03: It doesn't say anything about which function is called, other than that the execution must cause the function to provide a service. [00:12:56] Speaker 03: So literally, under the language of the corrected construction, the disclosure of the prior art in Ross should satisfy [00:13:05] Speaker 03: that construction. [00:13:07] Speaker 00: The construction got broader. [00:13:08] Speaker 00: Would you say that under the board's construction, the revised construction in the 151, that the concept of direct or indirect is irrelevant? [00:13:18] Speaker 00: Yes, your honor. [00:13:20] Speaker 03: Now, the board misapplied its corrective construction. [00:13:23] Speaker 03: So we believe that in addition to the original error that was made, on rehearing, the board admitted that it had made an error. [00:13:33] Speaker 03: But then it made the same mistake that the board made in the Owens-Corning versus Fastfeld case, where in Owens-Corning, the board construed a term, and this was concerned with roofing material, to not require coating in asphalt. [00:13:47] Speaker 03: But then when applying that term, required that the roofing materials either be coated in asphalt or eventually be coated in asphalt. [00:13:55] Speaker 03: And as a result of that erroneous construction or misapplication of the construction, [00:14:02] Speaker 03: found that the prior art didn't satisfy the limitation. [00:14:05] Speaker 03: We have the exact same issue here in that the corrected construction wasn't applied properly when it was reached. [00:14:14] Speaker 01: Now, why didn't the board reach secondary considerations on this issue? [00:14:21] Speaker 03: Your honor, because it found that Ross didn't satisfy this limitation, it never got to that issue. [00:14:31] Speaker 00: What do you say we should do if the court would agree with your position on this call to a first function question that you've been arguing? [00:14:43] Speaker 00: In other words, you're saying that there was a, whether it's a misconstruction or misapplication of a correct construction, what would be, if the court would agree, what would be the result? [00:14:55] Speaker 03: Be a remand? [00:14:57] Speaker 03: I believe that a remand would be required in any event, because the board did not reach two issues that Finjen raised, one concerning whether it could show a conception date before Ross's publication date. [00:15:11] Speaker 01: So you're not asking for a straight reversal on this issue? [00:15:15] Speaker 03: We did originally have been given identification of those issues. [00:15:18] Speaker 03: I think that a reversal would be warranted, but you wouldn't be able to enter a judgment. [00:15:22] Speaker 03: You'd remand. [00:15:23] Speaker 03: So we're asking for correction of the claim construction error. [00:15:28] Speaker 03: and then a remand for the board to reach the secondary considerations and swear behind issues that Finch and identified. [00:15:38] Speaker 03: There's another issue in this case I'd like to draw the court's attention to. [00:15:41] Speaker 03: The board's finding of indirectness is based on Dr. Medvedevich's characterization of Ross. [00:15:50] Speaker 03: It's in Appendix 84 through 87. [00:15:52] Speaker 03: This is a case where Dr. Medvedevich simply labeled [00:15:57] Speaker 03: the software writing strategy of variable reassignment is indirect. [00:16:03] Speaker 03: Just said, a variable reassignment is an indirect function call. [00:16:08] Speaker 03: Dr. Medvedevich's opinion on that point isn't supported by any evidence. [00:16:11] Speaker 03: We find his opinion in his declaration in appendix 6129 to 6130. [00:16:18] Speaker 03: Merely saying, as Ipsy Dixit, that variable reassignment causes a function call to be indirect isn't enough under this [00:16:28] Speaker 03: this court's precedence, for the board to find, as it did, that Ross's call is indirect. [00:16:35] Speaker 03: So not only from a claim construction standpoint do we have an error here, but on the merits, the board needs to do more than just point to an expert declaration that uses the word indirect to support a finding of indirect. [00:16:48] Speaker 02: And you would say that's particularly so here because of the existence of the cross-examination, which seems to undermine [00:16:56] Speaker 02: that expert report assertion. [00:16:59] Speaker 02: Do I understand? [00:17:00] Speaker 02: I just want to make sure I understand correctly. [00:17:01] Speaker 03: Absolutely, Your Honor. [00:17:02] Speaker 03: And now I may take just a moment to draw the Court's attention to the gray brief at 16. [00:17:09] Speaker 03: We've summarized those three bits of testimony from Dr. Medvedevich. [00:17:15] Speaker 03: And in our view, they're consequential. [00:17:21] Speaker 03: What page are you on? [00:17:22] Speaker 03: Gray brief, page 16. [00:17:25] Speaker 03: Dr. Medvedevich testified, you'll find starting about a quarter, a third of the way down and then two thirds of the way down at the very bottom, fourth line down second paragraph, active x object is now a reference in memory that's going to be pointing to something of typed hooked active x object. [00:17:47] Speaker 03: Hooked active x object is the first or substitute function. [00:17:52] Speaker 03: Active x object was the second or original function. [00:17:55] Speaker 03: He then testified, when you call active x object, you would really be referencing the variable itself, which is assigned to hooked active x object. [00:18:06] Speaker 03: And finally, there is no indirectness. [00:18:08] Speaker 03: And this is the very bottom of the page. [00:18:10] Speaker 03: When there's a reference to active x object, the actual object that's getting referenced is hooked to active x object. [00:18:18] Speaker 03: So Dr. Medvedevich was quibbling with what he was characterizing with no supporting evidence that [00:18:24] Speaker 03: Variable reassignment means it's an indirect function call. [00:18:29] Speaker 03: But there is no explanation in the record, the appendix 60-29 or 30, to back that, simply a label. [00:18:38] Speaker 03: The board accepted that label and then found that Ross didn't satisfy the limitation. [00:18:45] Speaker 02: He was also asserting, if I remember correctly, that the hook script was actually referring to the original function. [00:18:55] Speaker 02: Do I have that correctly? [00:18:56] Speaker 02: And you think that this testimony from Mr. Medvedovic also contradicts that assertion? [00:19:03] Speaker 03: Yes, Your Honor. [00:19:04] Speaker 03: And again, this is all about the question of what the code writing strategy of variable reassignment means. [00:19:13] Speaker 03: I have nothing further or less. [00:19:14] Speaker 03: The panel has any questions. [00:19:34] Speaker 04: May it please the court. [00:19:37] Speaker 04: In the two IPRs that were instituted against the 154 patent, the board provided detailed factual findings of why the prior art did not invalidate the 154 patent. [00:19:53] Speaker 04: Council spent his entire time speaking about the 151 and the Ross, so I'll start there. [00:20:01] Speaker 04: Ross has a trick. [00:20:04] Speaker 04: The trick of ROS is to recall an original function. [00:20:11] Speaker 04: It's throughout the specification. [00:20:13] Speaker 04: Paragraph 10, 11, 12, 13, this is all on APX 4314. [00:20:20] Speaker 04: You call the original function. [00:20:24] Speaker 04: Then you do a trick. [00:20:26] Speaker 04: You do the variable reassignment. [00:20:30] Speaker 04: And you do the variable reassignment so that you can trigger the hook function. [00:20:36] Speaker 04: That is not a safe system. [00:20:39] Speaker 04: And the 154 patent recognizes that. [00:20:41] Speaker 02: How, though, does the patent claim require a safe system? [00:20:45] Speaker 04: Because, as the petitioner constantly points out, they equate in one embodiment. [00:20:51] Speaker 04: The first function is the substitute function. [00:20:54] Speaker 04: And the second function is the original function. [00:20:58] Speaker 04: You don't call the original function unless you know it's safe. [00:21:02] Speaker 04: So that's why you put in the substitute function. [00:21:06] Speaker 04: Ross doesn't do that. [00:21:08] Speaker 04: If for some reason that variable reassignment gets overwritten, bypassed, you're going to be hit with malicious code. [00:21:19] Speaker 04: Because the original function is going to execute. [00:21:22] Speaker 04: And it's going to execute that code. [00:21:24] Speaker 04: The 154 in the examples provided by the petitioner, they substitute that function. [00:21:29] Speaker 04: They don't allow that function to be correct at all. [00:21:34] Speaker 04: And that makes it safer. [00:21:36] Speaker 04: Because if you execute a substitute function, there's no chance that you're going to execute the original function if it is determined to be malicious. [00:21:48] Speaker 04: So it's a safer system. [00:21:51] Speaker 04: Council argued that there's inconsistencies between the various applications of the definitions and what's being called and what's not being called. [00:22:01] Speaker 04: The board found. [00:22:05] Speaker 04: that there's calls to original functions, not hook functions. [00:22:08] Speaker 04: Dr. Medvedevich, on our red brief, page 40, we explain it in detail, says there's calls to original functions, not hook functions. [00:22:21] Speaker 04: Their expert said it. [00:22:23] Speaker 04: Dr. Rubin, he explicitly stated there is not an explicit call to a hook function. [00:22:32] Speaker 04: There are only calls to original functions in ROS. [00:22:35] Speaker 04: And then Ross couldn't be clearer. [00:22:37] Speaker 04: Ross, throughout the specification, says that you call the original function. [00:22:43] Speaker 02: What about this language that says in Dr. Medvedovic's testimony, the cross-examination that's referred to, that says when you call active x object, you would really be referencing the variable itself, which is assigned to be hooked active x object. [00:23:04] Speaker 02: So then you are then calling, I guess the implication is that it satisfies the claim language of calling the first function. [00:23:14] Speaker 04: Well, Your Honor, if you parse that and if you look at it, he says that it's referencing. [00:23:21] Speaker 04: This is the variable reassignment. [00:23:24] Speaker 04: Dr. Medvedevich is always very clear, and so is Ross, that you call the original function. [00:23:30] Speaker 04: It never states in Ross that you call the hook function. [00:23:33] Speaker 04: And Dr. Medvedevich, in his testimony, never states that you call the hook function. [00:23:39] Speaker 02: Do I understand, though, correctly that when you reference the variable, what you're doing is causing the hook function to happen? [00:23:48] Speaker 04: You're triggering the hook function. [00:23:51] Speaker 04: But call is a noun, and that's the statement that's in the content. [00:23:56] Speaker 04: And the call is to an original function. [00:23:59] Speaker 04: There's no doubt about that. [00:24:00] Speaker 02: And so what you're saying is that if the call is to the original function, which then references the hook function, that doesn't satisfy call to the original function. [00:24:10] Speaker 04: Absolutely, Your Honor, because it's not as safe. [00:24:16] Speaker 04: If you're still calling the original function and something happens to that variable reassignment, you're going to execute the malicious code. [00:24:25] Speaker 04: The 154. [00:24:25] Speaker 02: So your argument depends on the idea that referencing the variable could result in if something goes wrong with that step. [00:24:35] Speaker 02: And then because it's in the malicious code, then the hook function would never actually occur. [00:24:43] Speaker 04: Absolutely, Your Honor. [00:24:45] Speaker 04: And that's why the 154, again, using the examples by Petitioner, obviously what we're going to do here, they say that the first function is the substitute function. [00:24:55] Speaker 04: The second function is the original function. [00:24:57] Speaker 04: So using those examples, you put a substitute function in the code itself so that the substitute function is called, not the original function. [00:25:10] Speaker 04: And that makes it safer. [00:25:12] Speaker 04: That makes the system so that if you do have some type of malicious code or some malicious actor that's going to get in there and change it, [00:25:23] Speaker 04: The function is never going to be a call to that function. [00:25:33] Speaker 04: Council talked about the difference in the claim constructions, as well, that the board referenced. [00:25:41] Speaker 04: For our benefit, we have the detailed analysis of the rehearing decision. [00:25:48] Speaker 04: And this is at APX 3980. [00:25:52] Speaker 04: And in that decision, the board explained that it actually used the construction of a statement or instruction in the content that causes the function to provide a service in its analysis. [00:26:08] Speaker 04: It specifically states that in pages seven and eight of its decision. [00:26:14] Speaker 04: It uses that analysis. [00:26:16] Speaker 04: And then it goes on to explain how it doesn't change their conclusions by [00:26:21] Speaker 04: modifying the construction. [00:26:24] Speaker 04: Because it doesn't eliminate the requirement. [00:26:28] Speaker 04: Their construction does not eliminate the requirement that there is a call to a first function. [00:26:33] Speaker 04: And the petitioner identified the first function as the hook function. [00:26:38] Speaker 04: And there is simply not a call to a hook function. [00:26:42] Speaker 04: It's not in the content. [00:26:43] Speaker 04: And that's what the board found. [00:26:46] Speaker 04: and why the 154 patent is valid over Ross, over other reasons. [00:26:50] Speaker 04: But that's what the board landed on. [00:26:51] Speaker 04: That's all they had to get to. [00:26:57] Speaker 04: If there's no questions on Ross, I can move on to Kazan, if that's helpful. [00:27:03] Speaker 01: OK. [00:27:04] Speaker 04: So Kazan is the appeal for the 1979. [00:27:09] Speaker 04: And Kazan is actually even less safe, because not only [00:27:16] Speaker 04: do you call the function that could be malicious, you actually invoke it. [00:27:26] Speaker 04: Because the monitoring code is rewritten into the function itself. [00:27:33] Speaker 04: And in order for that function to execute, and for that processing code to execute, you have to invoke the function itself. [00:27:45] Speaker 04: So Kazan is even [00:27:47] Speaker 04: more dangerous because if for some reason that processing code isn't triggered, now the malicious code has to execute because you've already executed that function. [00:28:02] Speaker 04: So Kazan is even more dangerous than Ross. [00:28:06] Speaker 04: And the 154 protects against that situation because it only allows the second function [00:28:16] Speaker 04: which the petitioners identified as the original function, to be invoked if the security computer determines it's safe. [00:28:24] Speaker 04: Kazan executes that function no matter what. [00:28:30] Speaker 04: It has to invoke that function because that's how it does the processing step. [00:28:37] Speaker 04: That's how it processes and is supposed to provide some safety. [00:28:43] Speaker 04: If you never invoke the function, then there's never going to be any processing of any malicious code. [00:28:52] Speaker 04: And so it makes Gazan even less safe than the Ross reference. [00:29:08] Speaker 04: Your honors, if you have any questions about Kazan, I'm happy to answer them. [00:29:11] Speaker 04: If not, then I'll sit down. [00:29:13] Speaker 01: I think we got it. [00:29:14] Speaker 04: All right. [00:29:15] Speaker 04: Thank you, Your Honor. [00:29:15] Speaker 01: Thank you. [00:29:24] Speaker 03: Thank you to my friend, Mr. Hanna, for reaching into the 1979 case so I can address this. [00:29:29] Speaker 01: Appreciate that. [00:29:30] Speaker 01: You didn't address it. [00:29:32] Speaker 03: The issue here is a claim construction issue. [00:29:35] Speaker 03: We argue that invoking a second function [00:29:38] Speaker 03: requires executing the function, not just calling it. [00:29:43] Speaker 03: Reversal would be appropriate if the court finds that the proper construction of invoke requires execution of the function, not the call. [00:29:54] Speaker 03: There's been confusion at the board level and also in the argument today about the difference between invoking a function and calling a function that's discussed in our briefing. [00:30:07] Speaker 03: If the court agrees that the proper construction of invoke requires that the function executes, which would be consistent with the 151 IPR, where the board treated invoke as meaning the effect of the call to the function being executed, then a reversal would be required. [00:30:26] Speaker 03: It's worth noting that an oral argument [00:30:30] Speaker 03: Mr. Hannah agreed with the board in response to questioning that invoking requires function execution. [00:30:36] Speaker 03: That's at appendix 3942, not just calling. [00:30:40] Speaker 03: We concede in this case that the Kazan reference always calls that function, but it does not invoke that second function. [00:30:49] Speaker 03: Now, the fact that a function is always called would not be enough if the construction requires executing the function, not just calling it. [00:30:59] Speaker 03: At appendix 19 and 41, the board addressed the actual operation of Kazan. [00:31:06] Speaker 03: At appendix 19, the board recounted the disclosure in Kazan that not even the first line of instructions in the suspect or original function is executed. [00:31:20] Speaker 03: Not even the first line. [00:31:22] Speaker 03: The line is copied out and moved down, and it's not executed until after security check. [00:31:27] Speaker 03: That's appendix 1138, 1139 of paragraph 88. [00:31:31] Speaker 03: In appendix 41, the board also found, and it's undisputed on appeal, that by intercepting the original function, the program does not execute the body of that original function, but instead executes another function altogether, the wrapper function. [00:31:47] Speaker 03: So the operation of Kazan's not in dispute here. [00:31:51] Speaker 03: There is a call [00:31:53] Speaker 03: However, there is no execution of the original function until after the safety check. [00:31:58] Speaker 03: Claim construction should resolve the case because if the court concludes that invoking a function requires executing the function, as the board indicated in the 151 IPR, then reversal would be required because the board was focused only on whether the function is called. [00:32:15] Speaker 03: And in fact, it was confused that Appendix 51 noted that Kazan must call first the target function [00:32:22] Speaker 03: finding that the act of calling the function met the invoking the function language, and they're different. [00:32:28] Speaker 03: I have nothing else unless there are questions. [00:32:31] Speaker 03: OK. [00:32:31] Speaker 03: We thank you very much. [00:32:33] Speaker 01: We thank counsel for the arguments.