[00:00:06] Speaker 01:
We have five cases on the calendar this morning.

[00:00:11] Speaker 01:
Only one patent case.

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A trade dress case from the ITC.

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Two government contract cases, one from the Armed Systems Board, one from the Court of Federal Claims, and a government employee case that's been submitted on the briefs and will not be argued.

[00:00:35] Speaker 01:
First case is SRI International versus Cisco Systems, 2017-22-23, Mr. Lee.

[00:00:43] Speaker 01:
Thank you, Your Honor.

[00:00:50] Speaker 00:
May it please the Court, my name is Bill Lee, and together with my partner, Andrew Danforth, I represent Cisco.

[00:00:57] Speaker 00:
Given the limits of time, I would like to focus on two issues today, but I'm happy to address any issues the Court would like us to.

[00:01:04] Speaker 00:
First, I would like to focus on the district court's error in ruling that the asserted claims are directed to patent-eligible subject matter under Section 101.

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And second, the district court's erroneous claim construction, we contend, of the term, based on analysis of network traffic data, under the correct claim construction, we contend that judgment should have been entered for Cisco.

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So with the panel's permission, let me turn immediately to the Section 101 issue and take the two steps of Alice in order.

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Under Step 1 of Alice, the asserted claims are directed to an abstract idea, collecting, analyzing, and reporting data.

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The claims are broad, they are general, and they are generic.

[00:01:52] Speaker 01:
But the detecting paragraph, and it really is a paragraph, has a lot of detail in it.

[00:01:58] Speaker 01:
Doesn't that rescue them?

[00:02:00] Speaker 00:
No, Your Honor.

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First, the claims themselves are general.

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The paragraph that identifies the type of information that you might consider to monitor the network is not sufficient to save them.

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It, in fact, is very much like the information that was in the claims in this Court's electric power decision.

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And that information, the record is clear.

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The inventors here did not identify those categories of information.

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They did not suggest there was anything novel about those categories.

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They were not the first to suggest that those categories be monitored for the purposes of identifying suspicious activity.

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They were simply the categories you would consider in taking this abstract idea and applying it to, in this context.

[00:02:50] Speaker 00:
One of the.

[00:02:50] Speaker 02:
Why isn't this really DDR holdings?

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I mean, it's a, it's a pro, a computer-based problem.

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Your, your hypothetical seems so

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off base.

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I mean.

[00:03:01] Speaker 00:
Your Honor, it's not, and I can actually give two answers to the question.

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DDR holdings had two essential elements to the holding.

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The first was that it was solving a problem unique to computers and unique to the Internet, which is hyper-clicking and basically going to a new website.

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The asserted claims here don't solve a problem that is unique to computers.

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And, in fact, the argument that was made to the jury by SRI is the best example.

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SRI argued that this hierarchical monitoring is old, has been applied before in computers and elsewhere.

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And it gave a specific example which we've cited to you, I think, at page 33 of our brief.

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But it's an example of bank guards in different banks who might monitor a suspicious

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who might then write reports, they would go to a supervisor, a supervisor would integrate them and provide them.

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That is precisely what the claims describe.

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Your Honor, I gave you the incorrect page.

[00:04:11] Speaker 00:
It's page 28.

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But this is the example that SRI gave to the jury and demonstrates that it's not solving a problem unique to computers, and that was DDR.

[00:04:21] Speaker 02:
Well, when they were trying to explain sort of

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for the jury to understand that what you're trying to do is look for suspicious activity and then add it up.

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But the difference is that when you're talking about bank guards, you're not able to detect specific activity from across the city or across the country.

[00:04:42] Speaker 00:
Actually, Your Honor, you could.

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Because if you had the bank guards at different locations and the bank guards watch for suspicious activity, it could be new traffic coming to the bank, it could be people take extreme walking with ski masks on, sending the reports to supervisors and integrating them.

[00:05:01] Speaker 00:
That is hierarchical monitoring.

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And this is not an argument that was just made once, Your Honor.

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If you look at A2934 to 2935, this is the closing argument.

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that SRI made to the jury.

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And what they said is, I think, best demonstration that these claims are very general and very generic, they said, what kind of software you need doesn't matter.

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What kind of hardware you need doesn't matter.

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What does it have to do to collect the data?

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Doesn't matter.

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They're right.

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That is how general the claims are.

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And I think, Your Honor, the second half of my answer would be this.

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The end result of DDR was to come up with a new webpage.

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address the problem of the hyperlink or clicking on one site and going to another.

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There is no new webpage or nothing analogous here.

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So I think if I were to line the cases up as best I can,

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This case is much closer to electric power and fair warning.

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It's very close to electric power, and the claims are almost identical in terms of this additional information.

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Sotomayor.

[00:06:12] Speaker 03:
Where in the record do you have an admission that it's not novel to detect based on the analysis of the packets identified in the detecting step?

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So, Your Honor, two places, both at A-1553.

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The first is,

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Lines 17 to 23, the inventors concede that they did not invent the categories of network traffic data to be analyzed described in the claim.

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Oh, so you're saying they admitted that previously that very data had been analyzed in order to detect suspicious network activity.

[00:06:52] Speaker 00:
Yes.

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And then, Your Honor, if you go down a little bit further on that page, 1553, lines 24 to 1554, line 2, basically

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They have said earlier on the page that they weren't the first to identify these categories of information.

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They then say further on that they were not the first to monitor those categories of information.

[00:07:14] Speaker 02:
But that doesn't have anything to do with whether they were the first to monitor in this fashion.

[00:07:22] Speaker 00:
No, Your Honor.

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But I think it goes to Judge Laurie's question at the outset, which is that the categories of information which I understood Judge Stoll to be referring to now

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are the same categories that Judge Lurie referred to at the outset.

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And those are the only categories that add any additional words to the claims.

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And what the record, I think, says in an undisputed fashion, because it comes right from the inventors, is hierarchical monitoring was known outside of the context of computers.

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Hierarchical monitoring was known in the context of computers.

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Monitoring

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information were known and monitoring these categories of information in computers was known.

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That is why, Your Honor, if you look at the patent and you look at the file history, you will search forever to find a suggestion that the identification of those categories was what made these claims novel, patentable, and provided patentable subject matter.

[00:08:27] Speaker 03:
One of the things I'm struggling with is the anticipation issue, which I realize is different as it should be.

[00:08:33] Speaker 03:
But a lot of what you're saying today sounds like an anticipation argument or an obviousness argument.

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And yet, we've got an anticipation issue where the claim was found not to be anticipated.

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And it was this particular limitation that seems to be the thing that was missing from that prior argument.

[00:08:49] Speaker 00:
Your Honor, I think the questions of novelty and patentable subject matter are distinct, as the Court has said repeatedly.

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But they overlap to some degree.

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I mean, the second step of Alice, which I'll turn to immediately, clearly overlaps to some degree with the question of novelty or obviousness.

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But that's not the question here.

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And again, I would bring the Court to, at the panel decision, electric power, where in electric power, they specifically considered the categories of information.

[00:09:22] Speaker 00:
The panel specifically

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that those categories of information were known before, were monitored on electrical grids before.

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There was nothing.

[00:09:32] Speaker 03:
Electric power was about collecting information and then displaying it.

[00:09:38] Speaker 03:
Right.

[00:09:38] Speaker 03:
Not making an analysis based on particular information using in a particular network.

[00:09:46] Speaker 00:
No, Your Honor.

[00:09:48] Speaker 00:
First, it was a network.

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It was the power grid network.

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The second was the claims identified the specific categories of information in very much the same as it did here.

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And what the panel said is merely identifying those categories of information, collecting data based upon them, analyzing them, and reporting them is an abstract idea.

[00:10:11] Speaker 00:
I think.

[00:10:12] Speaker 02:
But in that case, the Court found that Step 1 was a relatively easy analysis.

[00:10:19] Speaker 02:
It seems that you're skipping over Step 1.

[00:10:21] Speaker 00:
I'm not, Your Honor.

[00:10:23] Speaker 00:
I think, let me say two things and get to Step 2.

[00:10:28] Speaker 00:
I think the way the cases break down is that if you believe the claims are generic in general and describe collecting, analyzing, reporting data, it's an abstract idea.

[00:10:39] Speaker 00:
That's what they do.

[00:10:40] Speaker 00:
Step 2, we're not skipping over to it because the answer on Step 2 is in Figure 6 and in Column 14, where the patent itself says that the implementation requires only customary

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and common computer components.

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So there's nothing in Step 2 that could save the abstract idea.

[00:10:58] Speaker 00:
The real question, I think, going to Judge Sol's question is, is this, does this fall into the category of collecting, analyzing, reporting data?

[00:11:06] Speaker 00:
The claim is very close to electric power.

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It is very much like this Court's decision in fair warning.

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If you contrast it with cases like Enfish, Finjin, DDR, in every single one of those circumstances, there was a new data structure.

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a new memory device, a new web page.

[00:11:28] Speaker 00:
There's not anything like that here.

[00:11:29] Speaker 00:
There's nothing that specific.

[00:11:32] Speaker 00:
Let me, in the interest of time.

[00:11:33] Speaker 02:
Before you sit down, I want to talk about willfulness.

[00:11:36] Speaker 02:
So I know that presupposes I might be disagreeing with you on 101, but the answer is I don't know that yet.

[00:11:43] Speaker 02:
But I want to look at some of the other issues that you've developed.

[00:11:48] Speaker 00:
And I have been assured that I was going to turn to the claim construction issue, but I'll

[00:11:52] Speaker 02:
Yeah, let's look at openness.

[00:11:54] Speaker 02:
So you argue that the 2000 meeting is irrelevant and that they shouldn't even be bringing that up because at that point you didn't have any knowledge of the patent even if there was some discussion of the technology.

[00:12:07] Speaker 02:
Is that right?

[00:12:08] Speaker 00:
No, Your Honor.

[00:12:09] Speaker 00:
I think that it's a little bit different.

[00:12:11] Speaker 00:
And what I would suggest on this issue is if you contrast what is in the brief with what is at A1160 to

[00:12:21] Speaker 00:
1161.

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What was said at trial is that there was a meeting in 2000.

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It was to discuss the technology.

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But SRI decided not to disclose the technology at that time.

[00:12:33] Speaker 00:
And the words that were used by the witnesses is, we clammed up so we wouldn't tell them anything about the technology.

[00:12:39] Speaker 02:
Sotomayor.

[00:12:40] Speaker 02:
Right.

[00:12:40] Speaker 02:
And there was no disclosure of the patent at that time.

[00:12:42] Speaker 00:
There was no.

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And that's why, repeatedly at trial, SRI said that Cisco had been copied.

[00:12:49] Speaker 00:
The idea that something differently happened at this meeting now really is something that's come up on the field.

[00:12:54] Speaker 02:
So what is the earliest point in time in which there was evidence that Cisco was aware of the patent?

[00:13:00] Speaker 02:
Was it any time before 2012?

[00:13:01] Speaker 00:
Your Honor, I don't have that precise date, but I'll get it for you before I come up on the floor.

[00:13:07] Speaker 02:
2012 is when they put you, formally put you on notice.

[00:13:09] Speaker 00:
Right.

[00:13:09] Speaker 00:
Right.

[00:13:09] Speaker 02:
But was there evidence that Cisco had notice of it before 2012?

[00:13:13] Speaker 00:
None that I believe that SRI relies upon.

[00:13:15] Speaker 00:
The focus is the 2000 meeting and thereafter.

[00:13:19] Speaker 00:
If I know I've been into my rebuttal time, let me just use 30 seconds of it to say something about the claim construction issue.

[00:13:27] Speaker 01:
I would like you to fully answer the question.

[00:13:30] Speaker 00:
Yeah.

[00:13:30] Speaker 00:
Did I fully answer the question?

[00:13:31] Speaker 00:
No.

[00:13:32] Speaker 00:
Okay.

[00:13:33] Speaker 00:
So on the willfulness issue, the other answer would be this.

[00:13:37] Speaker 00:
The focus of the district court's opinion is the fact that two Cisco engineers had not read the patent before their depositions.

[00:13:45] Speaker 00:
If that is the law, that

[00:13:48] Speaker 02:
But did you ever argue to the court that there's no evidence that Cisco had noticed before 2012 and therefore willfulness dating all the way back and being weighted all the way back to 2000 would have been inappropriate?

[00:14:05] Speaker 00:
Yes, we did, Your Honor.

[00:14:08] Speaker 00:
And I'll find a reference for you before I come up into the bottle.

[00:14:11] Speaker 01:
Okay.

[00:14:13] Speaker 01:
Give us a minute or so.

[00:14:13] Speaker 00:
All right.

[00:14:15] Speaker 00:
One minute on the claim interpretation, which is also a very big issue.

[00:14:19] Speaker 00:
I mean, you have a repeated disclaimer.

[00:14:22] Speaker 00:
There's no dispute there's a disclaimer.

[00:14:25] Speaker 00:
SRI says there is.

[00:14:26] Speaker 00:
We say there is.

[00:14:27] Speaker 00:
The patent office says there is.

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The district court said there is.

[00:14:30] Speaker 00:
The question is the scope of the disclaimer.

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And the way I would do it in the time I have left is I can key it up for you best this way.

[00:14:38] Speaker 00:
The disclaimer says no indirect examination is sufficient.

[00:14:42] Speaker 00:
It said no examination of information generated or gleaned is sufficient.

[00:14:48] Speaker 00:
It says no proxy is sufficient.

[00:14:50] Speaker 00:
The district court, which added the words data obtained and then clarified its claim construction to say, if the information has its source, if its lineage, if its origin is in the data packets, that's sufficient.

[00:15:07] Speaker 00:
abrogated entirely the disclaimer that was made repeatedly to the Patent Office.

[00:15:15] Speaker 00:
It is impossible, we suggest, to reconcile no indirect examination, not generated, not gleaned, not proxy, with good enough if it's origin, lineage, or source with the data packets.

[00:15:30] Speaker 00:
And I reserve my 30 seconds or so.

[00:15:32] Speaker 01:
We'll give you the minutes for the vote.

[00:15:34] Speaker 00:
Thank you.

[00:15:35] Speaker 01:
Mr. Schrockenbach.

[00:15:37] Speaker 04:
Thank you.

[00:15:37] Speaker 04:
Good morning.

[00:15:38] Speaker 04:
May it please the Court?

[00:15:39] Speaker 04:
I'll deal with the issues in the same order counsel did, if that's okay.

[00:15:45] Speaker 04:
First, on the 101, this is not at all like the sort of garden variety 101 cases where somebody says, let's take a known process and just do it on the Internet.

[00:15:58] Speaker 01:
The fundamental... It looks like detecting information

[00:16:01] Speaker 01:
generating reports and integrating the reports, dealing with information by conventional means.

[00:16:10] Speaker 04:
So the claims actually are quite a bit more specific than that, Your Honor, and I think that's really where the analysis by Cisco has gone off the tracks here.

[00:16:18] Speaker 01:
Cisco concedes in reply that you... But do they add computer instrumentalities?

[00:16:24] Speaker 01:
Do they change the computer, or is it simply different software?

[00:16:28] Speaker 04:
It is a improvement to the system itself, the software and system itself, in the selection of these network traffic categories.

[00:16:37] Speaker 04:
I mean, that's really the core issue that cuts across, I think, several arguments that Cisco is making.

[00:16:42] Speaker 04:
Were the categories known, per se?

[00:16:45] Speaker 04:
Yes.

[00:16:46] Speaker 04:
Had anyone selected these specific categories for this specific purpose?

[00:16:51] Speaker 04:
No.

[00:16:51] Speaker 04:
They contended.

[00:16:52] Speaker 01:
So it's clever, but it's still intellectual, isn't it?

[00:16:56] Speaker 04:
Well, it's not purely intellectual.

[00:17:00] Speaker 01:
It's ideas.

[00:17:01] Speaker 01:
It's choosing these particular parameters and writing them into the software.

[00:17:06] Speaker 04:
You have to – the insight was to recognize that looking at this particular kind of data in this particular way solved a problem that had not been solved before.

[00:17:18] Speaker 01:
Okay?

[00:17:18] Speaker 01:
Insight, idea.

[00:17:20] Speaker 04:
Well, I guess, you know, as the Court has said in many of its own opinions, if you abstract

[00:17:25] Speaker 04:
away enough of the detail of the claims, everything's abstract, right?

[00:17:31] Speaker 04:
But you can't do that.

[00:17:31] Speaker 04:
You actually have to look at what's in these claims.

[00:17:34] Speaker 04:
The Court's said it in McCrow and has said it in many other cases.

[00:17:37] Speaker 04:
And Cisco consistently doesn't do that.

[00:17:40] Speaker 04:
In fact, the formulation you heard today is the fourth different formulation by Cisco of what these, what the invention is.

[00:17:47] Speaker 04:
Today, it's collecting, analyzing, and reporting data.

[00:17:51] Speaker 04:
Well, that doesn't do justice to these claims.

[00:17:53] Speaker 04:
No, it's not.

[00:17:54] Speaker 04:
It's looking

[00:17:55] Speaker 04:
in a computer network security with a specific hierarchical arrangement of software and hardware.

[00:18:02] Speaker 04:
You're looking at specific data.

[00:18:04] Speaker 04:
You are creating reports based on the data you're looking at.

[00:18:08] Speaker 04:
You are then integrating and correlating those reports.

[00:18:10] Speaker 04:
These are very specific claims.

[00:18:12] Speaker 03:
And how would you describe the technical problem that is solved by the claimed invention?

[00:18:16] Speaker 04:
It is being able to detect intrusion in large-scale computer networks in a practical way.

[00:18:25] Speaker 04:
which had not been done before.

[00:18:26] Speaker 04:
It simply had not been.

[00:18:27] Speaker 04:
People had tried.

[00:18:28] Speaker 04:
Some of the prior art they cite, other than SRI's own prior art, the DID system was another attempt to try to do it, purely academic system, never adopted in the real world, never worked.

[00:18:41] Speaker 04:
These patents grew out of research funded by DARPA, the Defense Department, to solve this very problem, and they did.

[00:18:49] Speaker 02:
How do you explain the analogy that you gave to the jury?

[00:18:52] Speaker 02:
That certainly sounded pretty simple.

[00:18:55] Speaker 04:
Well, of course, we're not arguing 101 to the jury, right?

[00:18:58] Speaker 04:
I mean, it's an analogy to help them understand by reference to something in their own experience what we're talking about to get them in the ballpark, as it were.

[00:19:08] Speaker 04:
But that was, there was a lot more said to the jury than simply that high-level lead-in.

[00:19:12] Speaker 04:
We focused indeed on the network traffic categories.

[00:19:16] Speaker 04:
In particular, that argument was made not to the jury, not in the context of Emerald 97, because Cisco dropped that argument before the jury trial.

[00:19:25] Speaker 04:
But in the context of the other reference, the Dids reference, there was a lot of discussion about did that reference monitor network traffic data at all for any purpose.

[00:19:34] Speaker 04:
If it did, did it look at these specific kinds of network traffic data that are recited in the claims, because that is the key.

[00:19:42] Speaker 04:
That is the key to these claims.

[00:19:45] Speaker 04:
And if I can just comment on the other cases counsel has analogized to electric power, very different case.

[00:19:52] Speaker 04:
In that case,

[00:19:53] Speaker 04:
somebody took, looked at the real world, how do, how does somebody running a power grid, a person who's overseeing a power grid, sitting at a centralized location, what do they do?

[00:20:07] Speaker 04:
They look at certain kinds of data and they collect them and they put them on the screen and then they try to figure out what to do.

[00:20:12] Speaker 04:
The patent in that case said, okay, let's take that and computerize it.

[00:20:16] Speaker 04:
So, so that was a classic case of taking something that had been done and

[00:20:21] Speaker 04:
but performed by humans previously, do it using computers.

[00:20:25] Speaker 04:
That is not this case.

[00:20:26] Speaker 02:
So it's your position this isn't even directed to an abstract idea?

[00:20:30] Speaker 04:
I'm sorry, directed to?

[00:20:31] Speaker 02:
At step one, it's not even directed to an abstract idea?

[00:20:34] Speaker 04:
It's not.

[00:20:34] Speaker 04:
It's not.

[00:20:35] Speaker 04:
And that's what the district court found.

[00:20:36] Speaker 04:
I mean, you know, candidly, the district court said, and I think this picks up Judge Lurie on your point, she said, look, at some level, if you state it abstractly enough,

[00:20:47] Speaker 04:
every patent that touches software could be described as involving abstract ideas.

[00:20:53] Speaker 04:
We all can sort of recognize that, but that can't be the analysis in step one.

[00:20:57] Speaker 04:
It has to be more than that.

[00:20:59] Speaker 04:
There has to be a looking at the claim and to see if there is something in the claim that pairs it down.

[00:21:06] Speaker 04:
And in this case, the court said, yes, there was, just like DDR, where you had an improvement to the actual functioning of the computer and the computer network itself.

[00:21:16] Speaker 04:
Okay, so if I could go on to... Oh, I'm sorry.

[00:21:19] Speaker 03:
I want to ask you about willfulness.

[00:21:20] Speaker 03:
Unless you had something else you wanted to say about the one-on-one issue, I want to ask you about willfulness.

[00:21:25] Speaker 03:
Please.

[00:21:26] Speaker 03:
You know, in Halo, the court has made it clear that, you know, even if the test is more lenient now, you still have to show willful, wanton, culpable conduct.

[00:21:38] Speaker 03:
What is the evidence that would support the jury's verdict of willfulness?

[00:21:42] Speaker 04:
So there's several things.

[00:21:45] Speaker 04:
First of all,

[00:21:46] Speaker 04:
This jury was instructed on, of course, on the subjective prong of Seagate.

[00:21:51] Speaker 04:
This case was tried under Seagate.

[00:21:53] Speaker 04:
And they were specifically instructed on the subjective, intent, state-of-mind requirement.

[00:21:59] Speaker 04:
That's an A84.

[00:22:01] Speaker 04:
And they found, the jury found... I understand.

[00:22:04] Speaker 03:
I'm asking what is the evidence that would support the jury's finding.

[00:22:07] Speaker 03:
Again, focusing on willful, wanton, culpable conduct.

[00:22:13] Speaker 04:
Right.

[00:22:13] Speaker 04:
Okay.

[00:22:13] Speaker 03:
Well, so... Not irregular infringement.

[00:22:15] Speaker 04:
Okay.

[00:22:15] Speaker 04:
So let's go back to the question that Judge O'Malley asked about this meeting between Cisco and SRI.

[00:22:22] Speaker 04:
Cisco learns about SRI's technology, contacts SRI, and says, we want to come talk to you about your technology, set up a meeting.

[00:22:32] Speaker 04:
Okay?

[00:22:33] Speaker 04:
And there is a meeting.

[00:22:34] Speaker 02:
And SRI... But there was.

[00:22:36] Speaker 02:
I mean, on this point, your friend on the other side is correct that there is actual evidence that

[00:22:41] Speaker 02:
SRI didn't want to disclose the technology and kept it closed to the facts.

[00:22:45] Speaker 04:
Didn't want to disclose something very specific, okay?

[00:22:49] Speaker 04:
And I suggest if you look at the actual citations, and let me provide them, please.

[00:22:53] Speaker 04:
The meeting was set up because of Cisco's request to see the technology.

[00:22:57] Speaker 04:
That's at A5027, okay?

[00:23:01] Speaker 04:
And what was not shown to them was advanced high-level correlation, a very specific flavor of correlation

[00:23:10] Speaker 04:
the integration and correlation step, because SRI had decided they were going to carve that out and save it for a startup company.

[00:23:18] Speaker 04:
But Cisco was showing a demonstration of the basic operation of the system.

[00:23:24] Speaker 02:
How do you deal with the fact that you conceded a trial that they didn't copy?

[00:23:28] Speaker 04:
They didn't copy the patent claims.

[00:23:30] Speaker 04:
That was that concession, again, was very careful.

[00:23:33] Speaker 04:
The patent did not exist formally at the time of the meeting.

[00:23:35] Speaker 04:
Right.

[00:23:36] Speaker 04:
True.

[00:23:37] Speaker 02:
So what's the first point at which you put in evidence that they were aware of the patent?

[00:23:43] Speaker 04:
The soonest we know that they knew is when we told them in 2012.

[00:23:48] Speaker 02:
So then how can you have a willfulness determination that goes all the way back to 2000?

[00:23:53] Speaker 04:
Well, there are cases that say, I mean, this Court has recognized that if somebody sees in substance that what later becomes the patented technology ahead of time and later is found to have adopted the technology and used the technology,

[00:24:06] Speaker 04:
That's still relevant to willfulness, even though the patent formally issues later.

[00:24:10] Speaker 04:
So this is one of those cases.

[00:24:13] Speaker 02:
But the other part of the willfulness equation, of course, is what did they... Did you even have a patent application pending in 2000?

[00:24:20] Speaker 04:
We did.

[00:24:21] Speaker 02:
And did you tell them that?

[00:24:23] Speaker 04:
I don't believe the record reflects one way or the other, to be honest, Your Honor, whether there was a communication directly to Cisco that patents were pending.

[00:24:32] Speaker 02:
Well, that would have been a pretty important point to put in the record

[00:24:35] Speaker 04:
if it was accurate.

[00:24:38] Speaker 04:
I believe I don't disagree with you.

[00:24:40] Speaker 04:
I just don't know whether the evidence existed one way or the other.

[00:24:43] Speaker 04:
We do know SRI published, excuse me, published publicly articles on their work as it was happening.

[00:24:51] Speaker 04:
That's actually how Emerald 97 came to be, is because, you know, SRI had to report to the government, here's what we're doing, here's how we're spending your money, here's where we are.

[00:25:02] Speaker 04:
And indeed, it was Cisco reading that information

[00:25:05] Speaker 04:
that caused them to say, wow, this looks interesting.

[00:25:07] Speaker 04:
Let's have a meeting about it.

[00:25:09] Speaker 03:
But the other.

[00:25:10] Speaker 03:
But how is that willful and wanton patent infringement?

[00:25:13] Speaker 04:
Well, as far as that goes, it isn't.

[00:25:16] Speaker 04:
But we know how the story played out.

[00:25:18] Speaker 04:
How the story played out is Cisco indeed did infringe.

[00:25:23] Speaker 04:
They had no evidence.

[00:25:25] Speaker 04:
They didn't bother to look at the patents.

[00:25:28] Speaker 04:
Their lawyers might have.

[00:25:29] Speaker 04:
We don't know.

[00:25:30] Speaker 04:
They didn't put in that evidence.

[00:25:31] Speaker 03:
But their key... You're saying the two engineers who testified when asked about it said that they had not seen the patents.

[00:25:36] Speaker 04:
They had not, well, not only had not seen, I mean, that they thought it correct, hadn't seen, hadn't looked at them.

[00:25:43] Speaker 04:
And indeed, Mr. Resch said, why would I do that?

[00:25:46] Speaker 04:
Patents are low information content.

[00:25:49] Speaker 04:
I got sued by SRI.

[00:25:50] Speaker 04:
I assumed SRI didn't know what they were talking about.

[00:25:52] Speaker 04:
He was contemptuous of the patents.

[00:25:54] Speaker 04:
I mean, it's hard to capture on a cold record how that testimony hit the jury.

[00:25:59] Speaker 04:
But this man showed up and said, I don't think these guys have any idea what they're talking about.

[00:26:02] Speaker 04:
Patents?

[00:26:03] Speaker 04:
Schmittens.

[00:26:04] Speaker 04:
I mean, he was very dismissive of the patents.

[00:26:07] Speaker 04:
You couple that with the fact that their infringement case was exceptionally weak.

[00:26:13] Speaker 04:
They went to trial on two arguments, one of which was contradicted the Court's claim construction flat out.

[00:26:20] Speaker 04:
There's the they don't even challenge that on appeal.

[00:26:23] Speaker 04:
The other contradicted their argument, their documents on correlation.

[00:26:27] Speaker 04:
There were

[00:26:28] Speaker 04:
dozens of Cisco documents that talked about how critical this correlation feature was to their system.

[00:26:34] Speaker 04:
Dozens.

[00:26:35] Speaker 04:
And their second marquee trial defense was, well, we don't do that.

[00:26:39] Speaker 04:
We don't correlate.

[00:26:40] Speaker 04:
And the district court saw all this and said, in essence, that's kind of ridiculous, that you would put on those two defenses, and they don't appeal either of those to you.

[00:26:49] Speaker 04:
Right?

[00:26:50] Speaker 04:
So that's so much for infringement.

[00:26:52] Speaker 04:
Now, on the validity side, they gave up 17 of 19 of their validity theories

[00:26:58] Speaker 04:
on the EVA trial, no obviousness defense.

[00:27:03] Speaker 04:
They go to trial on an anticipation defense on a reference that was litigated repeatedly in earlier litigation.

[00:27:11] Speaker 04:
They had no new argument.

[00:27:13] Speaker 04:
It was rejected in all of the re-exams.

[00:27:15] Speaker 04:
They had no new argument.

[00:27:17] Speaker 04:
And they don't appeal any of that to you either.

[00:27:19] Speaker 02:
Have we ever said, since Halo, that Reed versus Portek are the factors that you're to consider into determining whether enhancement under 284 is appropriate?

[00:27:29] Speaker 04:
You have.

[00:27:30] Speaker 04:
Let me give you a couple of case sites.

[00:27:32] Speaker 04:
They're in the papers.

[00:27:35] Speaker 04:
Georgetown Rail is one case.

[00:27:37] Speaker 04:
Georgetown Rail.

[00:27:39] Speaker 04:
Presidio Components.

[00:27:42] Speaker 04:
So at least those two cases explicitly reaffirm the viability of the Reed factors.

[00:27:47] Speaker 04:
The only case they cite to the contrary is Spectrolitics.

[00:27:52] Speaker 04:
That case actually reaffirms the read factors as well in the page prior to the one that Cisco cites and says, yes, read is alive and well.

[00:28:01] Speaker 04:
These are the factors we use.

[00:28:03] Speaker 04:
The only thing Spectrolitics said was you might not weigh litigation misconduct as heavily in the enhancement scenario or context as you would for fees.

[00:28:16] Speaker 04:
But there's, I don't think there's any question on this record that, that reads alive and well.

[00:28:21] Speaker 04:
All right.

[00:28:22] Speaker 04:
So let me, let me just say finally a word about claim construction.

[00:28:26] Speaker 04:
I believe that's where the counsel ended up.

[00:28:30] Speaker 04:
And on that issue, the, was there a disclaimer?

[00:28:34] Speaker 04:
Yes.

[00:28:35] Speaker 04:
But not of what Cisco contends.

[00:28:38] Speaker 04:
And in fact, what they're contending, they use this phrase, indirect examination.

[00:28:44] Speaker 04:
You're not going to find that phrase in the prosecution history.

[00:28:47] Speaker 04:
SRI never said any such thing.

[00:28:49] Speaker 04:
And in fact, even the examiner, fundamentally, they're trying to rely on what the examiner said, which, of course, under this court's case law, you can't do.

[00:28:58] Speaker 04:
I won't say it doesn't matter what the examiner said, but certainly that doesn't create a clear and unmistakable disclaimer by the patentee.

[00:29:07] Speaker 04:
But even the examiner never said, gee, if what you do is you take the actual network traffic packet and you take it apart so you can under so you figure out what you're going to actually look at.

[00:29:20] Speaker 04:
You take the header out.

[00:29:22] Speaker 04:
You get to the just the data.

[00:29:24] Speaker 04:
Then you reorder the data so it makes sense, so it's in the right order.

[00:29:28] Speaker 04:
And if you analyze that, oh, that's not what this patent's about.

[00:29:32] Speaker 04:
That is that was never discussed during prosecution or reexamination, excuse me.

[00:29:37] Speaker 04:
The examiner never said anything like that.

[00:29:40] Speaker 04:
Even if you take what the exam- Can I ask you something?

[00:29:43] Speaker 03:
Yes, please.

[00:29:44] Speaker 03:
On page JA26402, I see a reference to indirect.

[00:29:49] Speaker 03:
And I just want to ask you that.

[00:29:50] Speaker 03:
I think this is the prosecution history.

[00:29:53] Speaker 04:
26402?

[00:29:54] Speaker 03:
Yeah, it's 26402.

[00:29:56] Speaker 03:
It's in the last paragraph.

[00:30:02] Speaker 03:
And it says that the prior art detects suspicious activity based upon indirect examination of network packets.

[00:30:09] Speaker 03:
And I think this is distinguishing the prior art that was being relied upon by the examiner.

[00:30:15] Speaker 03:
So I was wondering about your statement where you said the prosecution history doesn't use the word indirect.

[00:30:22] Speaker 04:
You're right.

[00:30:23] Speaker 04:
This says that.

[00:30:24] Speaker 04:
I meant SRI.

[00:30:25] Speaker 04:
It didn't say anything about indirect.

[00:30:27] Speaker 04:
This is the examiner.

[00:30:28] Speaker 04:
referring to Andrew.

[00:30:29] Speaker 04:
I apologize.

[00:30:29] Speaker 04:
That's fair.

[00:30:31] Speaker 03:
But what the examiner says about the claims and what they mean and how they, that matters, right?

[00:30:37] Speaker 04:
It is relevant insofar as it's some evidence of how somebody of skill in the art understands what transpired, yes.

[00:30:44] Speaker 03:
And in particular in response to the arguments that are being made by the patent applicant.

[00:30:49] Speaker 04:
Yes.

[00:30:49] Speaker 04:
Yes.

[00:30:49] Speaker 04:
Fair enough.

[00:30:50] Speaker 04:
But then he goes on, and this is really where the rubber meets the road.

[00:30:53] Speaker 04:
Then he goes on on the same page to say,

[00:30:56] Speaker 04:
even including direct examination of data gleaned from network packets.

[00:31:02] Speaker 04:
And so the examiner takes it and goes in a completely different direction and says, even if what you're doing is looking at the data that's in the packets in some way that no one even knows, I think, how this could be done, that doesn't involve taking the packets apart first and organizing them first in a way that a computer can even process them, well, even that's not covered.

[00:31:23] Speaker 04:
And so that's really what I think we're

[00:31:26] Speaker 04:
It's not at all clear that there was a disclaimer.

[00:31:30] Speaker 04:
And again, at the end of the day, and I know I'm running out of time here, the patent examiner was distinguishing this intrusive activity article.

[00:31:39] Speaker 04:
This goes over to the next page.

[00:31:41] Speaker 04:
Intrusive activity, all this discussion is about that reference, okay?

[00:31:47] Speaker 04:
That reference had nothing to do with preprocessing network traffic data.

[00:31:52] Speaker 04:
It was about analyzing

[00:31:54] Speaker 04:
higher level, complex, abstract objects that were inferred, it's the examiner's word, inferred from what was going on with the network packets.

[00:32:04] Speaker 04:
So very different process, very different approach to the problem.

[00:32:10] Speaker 04:
And that's something actually Cisco even claims that it does.

[00:32:14] Speaker 01:
Thank you, Mr. Schreckenbach.

[00:32:17] Speaker 01:
Mr. Lee has a couple of minutes at the bottom.

[00:32:21] Speaker 01:
Indeed, sir.

[00:32:22] Speaker 00:
Very briefly, Your Honor.

[00:32:25] Speaker 00:
To answer Judge O'Malley's question, the date would be May 8, 2012, at Appendix 5001 to 5002, I think, as the first notice.

[00:32:35] Speaker 00:
I think we both agree on that.

[00:32:36] Speaker 03:
Could you say Appendix 5001?

[00:32:37] Speaker 00:
5001 to 5002.

[00:32:40] Speaker 00:
It's the notice letter.

[00:32:43] Speaker 00:
Let me make two points and pick up where Mr. Shercombe back ended.

[00:32:49] Speaker 00:
It's more than the examiner saying indirect.

[00:32:52] Speaker 00:
If Your Honor looks at 26286, SRI articulates the examiner's position that indirect examination would be covered, and then spends two pages debunking in its view that idea, concluding at the end of 26287 that the examiner's logic that indirect examination would be covered is flawed.

[00:33:18] Speaker 00:
It said it four times.

[00:33:20] Speaker 00:
So

[00:33:20] Speaker 00:
It four times characterized, it said the examiner said it would cover indirect examination, and they four times said the logic is flawed.

[00:33:30] Speaker 00:
And that's why, when I tried to do it quickly, the idea that it wouldn't, the claims don't cover indirect examination, don't cover generated or gleaned, don't cover proxy, cannot be reconciled with a clarification order that refers to source or region.

[00:33:50] Speaker 00:
and lineage in either context.

[00:33:53] Speaker 00:
And Mr. Cherkevich's statement about intrusive is actually incorrect, I would say, respectfully.

[00:34:02] Speaker 00:
If the Court considers intrusive at A33841, you will see that it's not limited in the manner in which SRI argued in its brief.

[00:34:11] Speaker 00:
SRI argued in its briefs that the disclaimer is limited to logs, right?

[00:34:17] Speaker 00:
The intrusive article covers more than logs and, in fact, covers other forms, and it's described specifically at those pages.

[00:34:25] Speaker 00:
So their interpretation, at least in the briefs to you, of the disclaimer as limited to logs, would not have covered intrusive.

[00:34:35] Speaker 00:
Last point.

[00:34:36] Speaker 00:
On the question of Section 101, what I would say and leave the panel with is this.

[00:34:43] Speaker 00:
If you compare this claim,

[00:34:46] Speaker 00:
to the claims of electric power and fair warning, those claims have more information than this claim does.

[00:34:54] Speaker 00:
In fact, if you take this claim and you eliminate the categories of information that Judge Lorry began the argument with, what you're left with is a computer-automated method, that's how it begins, that collects information, generates information, integrates it and reports it with nothing else.

[00:35:16] Speaker 00:
under this Court's decisions, that is not patent-eligible subject matter.

[00:35:20] Speaker 01:
Thank you, Your Honor.