[00:00:00] Speaker 03:
SSL services versus Cisco.

[00:00:37] Speaker 02:
Mr. Botteglia, please proceed.

[00:00:45] Speaker 00:
Thank you, your honors, and may it please the court.

[00:00:48] Speaker 00:
As the board itself here recognized, the issue about whether there was a sufficient showing for a motivation to combine the references here turned on whether there was, quote, a showing of the differentials and burdens between the Alden reference on the one hand

[00:01:07] Speaker 00:
and the proposed combination of Alden and Takahashi on the other.

[00:01:11] Speaker 04:
Am I correct that SSL only disputes on appeal the combination of the two of the four references?

[00:01:19] Speaker 00:
On appeal, that's the focus.

[00:01:20] Speaker 00:
Absolutely.

[00:01:21] Speaker 00:
And that's the focus because there's no evidence here supporting what the board found in saying that there was improved performance by addressing the pre-configuration processing burden.

[00:01:36] Speaker 00:
That's what the board was discussing when it was talking about the motivation to combine on A28 and A29 of the record.

[00:01:43] Speaker 00:
There's no decision.

[00:01:44] Speaker 00:
I'm trying to narrow your broadly as I ask you the question.

[00:01:48] Speaker 00:
Absolutely.

[00:01:49] Speaker 00:
And that is the issue.

[00:01:50] Speaker 00:
But to show the motivation to combine, they would have had it come forward, they, Cisco, would have had evidence showing that this pre-configuration processing burden

[00:02:01] Speaker 00:
was viewed as a problem in the field, or otherwise that.

[00:02:06] Speaker 04:
KSR says that under the correct analysis, any need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combined.

[00:02:19] Speaker 04:
Given how Takayashi discusses the programmatic undesirability of modifying a computer's communications control software and says,

[00:02:30] Speaker 04:
changing the TCP slash IP software is a problem, is that not enough reason to motivate a person of skill combined with all of them?

[00:02:42] Speaker 00:
No, Your Honor, and for two main reasons.

[00:02:45] Speaker 00:
There is no evidence showing that, again, this modification of the software was viewed as a burden or a problem in the field.

[00:02:55] Speaker 00:
The experts here actually agree that the relevant standard for determining whether or not a

[00:03:00] Speaker 00:
modification would be undesirable, would be a burden that would motivate somebody in the field, is whether it would upset programmer expectations.

[00:03:08] Speaker 01:
Well, I guess getting to the Takahashi reference, it does say repeatedly over and over again how its goal is to not modify the stack.

[00:03:22] Speaker 01:
And it says, yeah, it says, we do not want to change TCP slash IP protocol.

[00:03:29] Speaker 01:
refers to changing that software as being a problem.

[00:03:35] Speaker 01:
And it's against their goal to change the stack.

[00:03:39] Speaker 01:
So in that context, why was it unreasonable for the board to point that out and use that as a basis for combining the references so that when it comes to Alden, you don't need to any longer touch the stack?

[00:03:56] Speaker 00:
Well, there's two short answers to that, too, Your Honor.

[00:03:59] Speaker 00:
One shorter, one longer, I'll say.

[00:04:02] Speaker 00:
Under this court's precedent, such as in Rovalma, this court has held that a prior art reference generally references a desired trait or improvement in the field.

[00:04:12] Speaker 00:
That's not enough to show a motivation to combine, even if the prior art just has this general expression of wanting to do that.

[00:04:18] Speaker 00:
There has to be something more.

[00:04:20] Speaker 00:
Point two, the longer point is, this is not a modification in the first place.

[00:04:25] Speaker 00:
There's no dispute here, but what's actually happening with respect to Alden, it's not a modification that changes the function or the operation of the software and how it works.

[00:04:38] Speaker 00:
It's just merely updating the data, the numbers that are sent and used by the routing table in the communication software.

[00:04:47] Speaker 00:
In other words, the numbers just like your phone uses and needs updated numbers or telephone numbers

[00:04:54] Speaker 00:
or to make the correct connection.

[00:04:56] Speaker 00:
That's not a modification of the software.

[00:04:59] Speaker 00:
That's just providing the data that the software needs to operate.

[00:05:03] Speaker 00:
So it's not a modification in the first place.

[00:05:07] Speaker 00:
The board essentially made the factual finding, of which there's no dispute here, that this is just providing updated information, updated data to the routing table.

[00:05:18] Speaker 00:
But it called that a modification of the software.

[00:05:21] Speaker 00:
That's the wrong conclusion.

[00:05:23] Speaker 00:
for the reasons I just mentioned.

[00:05:25] Speaker 00:
It doesn't do anything to change the function or operation of the software.

[00:05:30] Speaker 00:
And if you look at Takahashi itself, which as your honor noted, talks about doing this approach for VPNs without modifying software, even discusses in the negotiation process, and I think this is at A785 of the record, and it talks about having the port numbers or the destination addresses modified and changed

[00:05:52] Speaker 00:
by the communication software.

[00:05:55] Speaker 00:
And that's described as being part of the process without changing the software.

[00:06:00] Speaker 00:
So Takahashi itself illustrates the same point here.

[00:06:04] Speaker 00:
Merely changing or providing updated data is not a modification.

[00:06:08] Speaker 00:
It's just providing the data that the software needs.

[00:06:11] Speaker 00:
So that's the reason why the board's decision is an error in finding that this was a modification, let alone a modification that would impose a burden.

[00:06:19] Speaker 00:
There's no evidence tying

[00:06:21] Speaker 00:
a modification here as being viewed as a burden in the field.

[00:06:25] Speaker 04:
In 34 and 35 of the blue brief, SSL cites Cisco's expert deposition and argues that the expert, and I'm quoting, refused to identify the burdens of Takahashi beyond the tautology that Takahashi did not have the burden of Alton in reconfiguring that routing table.

[00:06:51] Speaker 04:
And I went through that testimony repeatedly.

[00:06:55] Speaker 04:
I have a little bit of it here.

[00:06:59] Speaker 04:
You said, question.

[00:07:00] Speaker 04:
And you said Alden has a burden, right, sir?

[00:07:04] Speaker 04:
Answer.

[00:07:05] Speaker 04:
I said that Alden has a particular burden, which I specified and elaborated on.

[00:07:09] Speaker 04:
Right.

[00:07:10] Speaker 04:
Does Takahashi have any particular burden, sir?

[00:07:14] Speaker 04:
Takahashi does not have that burden.

[00:07:17] Speaker 04:
OK.

[00:07:17] Speaker 04:
Does Takahashi have any other burdens, then?

[00:07:19] Speaker 04:
answer, I'm not quite sure what you mean.

[00:07:23] Speaker 04:
Question, I'm talking about what you mean when you say burden, sir.

[00:07:27] Speaker 04:
It does not have that burden of Alden in reconfiguring the routing table.

[00:07:34] Speaker 04:
When I read that line of questions, the expert was simply answering your narrow question of whether a specific burden existed.

[00:07:41] Speaker 04:
I don't see any refusal.

[00:07:44] Speaker 04:
And yet, you say,

[00:07:50] Speaker 04:
he refused to identify the burdens of Takahashi.

[00:07:54] Speaker 04:
And that's your basis for saying that.

[00:07:57] Speaker 00:
Well, I think if you look at the Q&A... I did.

[00:07:59] Speaker 04:
I'm sorry.

[00:08:00] Speaker 00:
The question is asking, what other burdens does Takahashi have?

[00:08:07] Speaker 00:
And the expert here with the burden of proof doesn't, in his declaration, specify the overall burdens or improved performance.

[00:08:15] Speaker 00:
He's answering your questions.

[00:08:18] Speaker 00:
Well, I think we may have...

[00:08:20] Speaker 00:
Respectfully, Your Honor, I think there may be a disagreement on the view of that.

[00:08:23] Speaker 00:
But the questions, in our view, speak to the issue about whether the expert here with the burden of proof was addressing the question on Takahashi and, by extension, Takahashi and Alden have a burden that is greater than or less than or equal to the burdens in the Alden reference itself.

[00:08:46] Speaker 00:
And the expert here with the burden

[00:08:48] Speaker 00:
with the burden of proof doesn't in either his declaration or his deposition provide evidence showing that, oh, indeed, Takahashi reduces the overall burden.

[00:08:59] Speaker 00:
with respect to Alden or doesn't otherwise show that there's improved performance.

[00:09:04] Speaker 00:
And it was their burden to show that Takahashi or the combination of Takahashi and Alden would have improved the processing or improved performance, as the board described as being a motivation, or would have somehow reduced the overall burden for that combination.

[00:09:23] Speaker 00:
So our point there is simply the expert did not provide

[00:09:26] Speaker 00:
evidence showing that when he had an obligation, or at least Cisco had an obligation to put forward evidence proving that point.

[00:09:34] Speaker 00:
It wasn't our burden to do that.

[00:09:35] Speaker 00:
And so all we have then with respect to the burdens issue on the comparison question is Dr. Polanyi is testifying that Alden has a significant pre-configuration processing burden without describing what the overall burdens are with respect to Alden.

[00:09:55] Speaker 00:
The proposed combination or Takahashi does not have that particular burden.

[00:09:59] Speaker 00:
But that doesn't answer the question here.

[00:10:01] Speaker 00:
The question is, would a person of skill in the art view this as something that would improve performance such that they would look past Alden or want to combine Alden with Takahashi?

[00:10:11] Speaker 00:
And there's no evidence of that.

[00:10:13] Speaker 00:
There's no evidence making that comparison.

[00:10:15] Speaker 00:
And that's the reason why, it seems, Cisco in their opposition brief doesn't defend the board's burden analysis, because there's no evidence making that comparison or, as the board itself asked at the hearing, showing that there's a differential in burdens between Alden on the one hand and Alden and Takahashi on the other.

[00:10:36] Speaker 00:
And without that, then, there was no evidence for the board to conclude, no substantial evidence for this court to conclude,

[00:10:43] Speaker 00:
that, therefore, a person of skill in New York would have been motivated to make that combination.

[00:10:49] Speaker 00:
And so that just leads to the other point from the board that it references Alden Figure 3 and the 10 steps that are used by the Alden process.

[00:11:02] Speaker 00:
And you'll see in our briefs, we noted that that was raised not in the original petition, but was raised in, for the first time, in the reply, which is contrary to the rules and contrary to this Court's precedent.

[00:11:13] Speaker 00:
And so we didn't have an opportunity to respond to that, but that still doesn't change the outcome here about the absence of substantial evidence.

[00:11:22] Speaker 00:
Because there's no evidence, again, showing that whether it's 10 steps or four steps with respect to how these systems operate, there's no evidence, no expert testimony or anything of the kind showing that steps are equated with burden.

[00:11:38] Speaker 00:
It could be 10 simple steps, and it could be four really complicated steps.

[00:11:43] Speaker 00:
And at the hearing, Cisco brought out for the first time, and in its reply brief, the comparison of Alden having 10 steps versus Takahashi only having two or four, something to that effect.

[00:11:55] Speaker 00:
But there's another figure.

[00:11:56] Speaker 04:
Do you agree that the need to modify Alden is a factual dispute below?

[00:12:02] Speaker 00:
The desire to modify it?

[00:12:08] Speaker 00:
Yes, I would.

[00:12:11] Speaker 00:
And the board on that particular fact finding found that the modification, as I mentioned here, is not anything that changes the functionality or operation of the software.

[00:12:21] Speaker 00:
What the board said, and this is A28 going up to A29 of its opinion, said that there's a modification in that the information or the data being used by the routing table is a modification.

[00:12:36] Speaker 00:
And that just gets back to my earlier point that merely providing updated information for the routing table is not a software modification.

[00:12:46] Speaker 01:
SHIMs were well known in the yard at the time.

[00:12:48] Speaker 01:
Is that fair to say?

[00:12:50] Speaker 00:
It is fair to say.

[00:12:52] Speaker 01:
What's invented?

[00:12:54] Speaker 01:
Looking at the background of this patent, the 011 patent, and it says at the bottom of column three to the top of column four,

[00:13:04] Speaker 01:
If possible, it is generally desirable to minimize modification of the existing levels by adding a layer to perform the desired functions, calling upon the services of the layer below while utilizing the same function calls so that the higher layer also does not need to be modified.

[00:13:21] Speaker 01:
Such a layer is commonly referred to as a shim.

[00:13:24] Speaker 01:
So I guess my question is, isn't the background of the invention

[00:13:31] Speaker 01:
of your patent basically saying, yeah, you want to use a shim to avoid touching the layers of the stack.

[00:13:41] Speaker 01:
And so you want to avoid modifications to the stack.

[00:13:46] Speaker 01:
That's what this is saying in the background of the patent.

[00:13:50] Speaker 00:
The patent talks about the desirability of avoiding software modifications.

[00:13:55] Speaker 00:
I don't think that changes anything about the analysis and the record supported here, which is that

[00:14:00] Speaker 00:
Merely providing an updated routing table is not a modification of the software.

[00:14:06] Speaker 00:
It doesn't change the function or operation of the software, which the undisputed record evidence here shows is something that is virtually done, done virtually in every type of computer in a network, in a system.

[00:14:19] Speaker 00:
It's done by virtually every computer.

[00:14:21] Speaker 00:
So that would not, per the relevant standard agreed by the experts, upset programmer expectations.

[00:14:27] Speaker 03:
It wouldn't be a modification.

[00:14:30] Speaker 00:
I will save it, Your Honor.

[00:14:31] Speaker 00:
Thank you.

[00:14:32] Speaker 03:
Mr. Foster.

[00:14:45] Speaker 05:
Thank you, Your Honors.

[00:14:46] Speaker 05:
May it please the Court.

[00:14:48] Speaker 05:
I'd like to start picking up Judge Chen with the point that you were pointing out that the patent at issue here

[00:14:55] Speaker 05:
in its own background pointed out that it was desirable to avoid modifying the TCPIP stack, to avoid making changes to that communication control software.

[00:15:05] Speaker 05:
I'd also point out that the applicants during prosecution of this patent specifically argued that point as a reason for allowance.

[00:15:14] Speaker 05:
That's in the appendix at page 147.

[00:15:18] Speaker 05:
Regarding SSL's arguments here that

[00:15:22] Speaker 05:
The modification that Alden is making is just to the routing table, and that isn't a modification that counts.

[00:15:29] Speaker 05:
That's a question of fact, and it was resolved below by the board, citing to Alden itself, which in column 19, line 60 and 61, states, and uses the word modify, states that it requires modifying that routing table, and that routing table is part of

[00:15:47] Speaker 05:
the TCPIP stack.

[00:15:49] Speaker 01:
What does it mean to modify the routing table?

[00:15:52] Speaker 01:
Are you just changing the data inside the table as opposed to changing perhaps the structure or the underlying software of the table?

[00:16:01] Speaker 05:
In this context, I believe that it means adding additional entries that are going to control how the software operates so that certain packets will be diverted and handled differently than they would have been before.

[00:16:14] Speaker 05:
I'd also point out that the modifications, the routing table is not the only modification that Alden makes.

[00:16:22] Speaker 05:
If you look in our Apple e-brief at page 24, we discuss some of the other modifications that Alden requires.

[00:16:28] Speaker 05:
It requires adding a pseudo network adapter and getting that registered with the IP layer to, again, change the operation of the TCP IP software there.

[00:16:37] Speaker 05:
Adding in what's called an ARP emulator, adding in what's called a DHCP emulator, and those are

[00:16:44] Speaker 05:
processes that are going to manipulate the way that the TCPIP stack is operating.

[00:16:51] Speaker 05:
So the routing table update is not the only update in question, but certainly is one of the ones that the board cited, and appropriately so.

[00:17:06] Speaker 05:
Regarding this issue, this is a case that is here on appeal under the Substantial Evidence

[00:17:14] Speaker 05:
And so the question is, is there evidence in the record supporting the board's conclusion that Alden requires modification?

[00:17:20] Speaker 05:
Of course, Alden itself uses the word modify with respect to the operation of its CCPIP stack.

[00:17:26] Speaker 05:
As I mentioned in column 19, I think the board's decision is supported on that fact.

[00:17:30] Speaker 03:
What's the evidence that there would be a motivation to reduce pre-configuration processing burden?

[00:17:36] Speaker 05:
So regarding the pre-configuration processing burden, what the board cited and explained in its decision

[00:17:42] Speaker 05:
If you look at appendix page 30 in the board's decision, they described Alden's initialization process and the steps that it goes through to get an IP address for the secure communication link itself.

[00:17:56] Speaker 05:
And then if you look at pages 31 and 32, the paragraphs spanning those pages, they explained, again, citing to the testimony of SSL's expert Dr. Hamilton, they explained that the distinction between how Alden will work and how Alden will work with Takahashi, or how Takahashi works on its own,

[00:18:13] Speaker 05:
is that Alden requires going through those processing steps for every new secure connection.

[00:18:20] Speaker 05:
But Takahashi only requires getting an IP address once when the computer starts up.

[00:18:25] Speaker 05:
And so that's one of the differences between the operation.

[00:18:28] Speaker 02:
The problem is that the way you just described it sounds very much like hindsight.

[00:18:32] Speaker 02:
I said to you, what's the motivation that one would have to want to change Alden?

[00:18:37] Speaker 02:
Alden's the primary reference, right?

[00:18:40] Speaker 02:
So there has to be a motivation.

[00:18:41] Speaker 02:
There has to be someone looking at Alden saying, ah, there's a problem here.

[00:18:43] Speaker 02:
That pre-configuration delay is causing a lot of processing problems.

[00:18:48] Speaker 02:
Where is that evidence?

[00:18:49] Speaker 02:
Where is there some evidence that a skilled architect looking at Alden would want to reduce pre-configuration delay?

[00:18:55] Speaker 02:
Where is even a recognition of a delay or a problem?

[00:18:59] Speaker 05:
Certainly.

[00:19:00] Speaker 05:
So I would point you to the declaration of Cisco's expert in his opening declaration, paragraph 135.

[00:19:10] Speaker 02:
What page of the appendix?

[00:19:41] Speaker 05:
It's appendix page 634.

[00:19:43] Speaker 05:
634.

[00:19:44] Speaker 05:
There in paragraph 135, Dr. Kelly Nades explained that one of the restrictions on Alden's technique is that it requires this pre-configuration setup to identify the secure communication destination before

[00:20:09] Speaker 05:
any application attempts to communicate with it.

[00:20:13] Speaker 05:
So it requires initialization and setting up and maintaining that secure communication link before it's ever actually requested by any software.

[00:20:25] Speaker 05:
And so that's the pre-configuration burden that we discussed in the petition.

[00:20:32] Speaker 05:
And it's that restriction on identifying who you want to talk to before you ask to talk to them.

[00:20:39] Speaker 05:
In a sense it requires anticipating the destination and then as we mentioned with the third motivation combined that was in the petition the board didn't get to, that initialization process that Alden goes through then restricts whose communications will be secured, whose communications will be encrypted, only communications with those destinations that were previously configured.

[00:21:04] Speaker 05:
Whereas Takahashi performs these steps of determining whether

[00:21:09] Speaker 05:
secure communication as possible, when the application software requests the initialization of a communication connection.

[00:21:17] Speaker 05:
So when the connection to a server is first established, that's when Takahashi will determine whether or not secure communication is possible, and if so, make sure that it is secure and encrypt those communications.

[00:21:32] Speaker 05:
I'd also like to touch on the argument regarding

[00:21:38] Speaker 05:
the Alden's 10-step initialization process.

[00:21:41] Speaker 05:
Alden's 10-step initialization process obviously was in the case from the very beginning.

[00:21:49] Speaker 05:
It was in evidence.

[00:21:49] Speaker 05:
It was in Alden.

[00:21:50] Speaker 05:
Alden describes it.

[00:21:52] Speaker 05:
It's there in Figure 23.

[00:21:55] Speaker 05:
And the arguments that SSL is making now are not reviewable under substantial evidence.

[00:22:05] Speaker 05:
SSL is arguing that the board

[00:22:07] Speaker 05:
violated its own rules or allowed Cisco to violate its rules regarding the scope of petitioners' replying.

[00:22:13] Speaker 05:
That's simply not the case.

[00:22:16] Speaker 05:
That sort of decision should be reviewed for abuse of discretion, and that's covered in the Intelligent Biosystems case that SSL cites on this matter.

[00:22:30] Speaker 05:
If you look at appendix page 3828,

[00:22:35] Speaker 05:
You will see where Cisco discussed the 10 steps in its petitioners' reply, and it was clearly in response to arguments that SSL had made, and in fact that SSL is repeating here, relating to trying to argue that Takahashi and Alden had similar pre-configuration requirements.

[00:22:57] Speaker 05:
And as I discussed earlier, that's simply not the case, but the argument

[00:23:03] Speaker 05:
about the 10 steps was clearly made in reply.

[00:23:07] Speaker 05:
And the board found that in the appendix, page 37, they determined that there was no improper new arguments raised.

[00:23:16] Speaker 05:
In summary, the board here spent slightly more than four pages exhaustively addressing the motivation to combine and extensively citing to the testimony of both experts and the references themselves.

[00:23:30] Speaker 05:
I believe that that treatment deserves this

[00:23:33] Speaker 05:
court's affirmance.

[00:23:35] Speaker 05:
If there's no further questions, I'll see the remainder of my time.

[00:23:38] Speaker 03:
Okay, thank you, Mr. Foster.

[00:23:39] Speaker 03:
Thank you, Your Honor.

[00:23:49] Speaker 00:
As to the point about the modification of software and what the modification here is,

[00:23:55] Speaker 00:
A couple of points.

[00:23:55] Speaker 00:
First, the board itself only made the finding, only found that the modification here involves updating of data sent to the routing or used by the routing table.

[00:24:05] Speaker 00:
So the other cited modifications here are not facts in this case, and there is no argument then by Cisco that they should have been found by the board, the board aired somehow and not making those additional findings.

[00:24:17] Speaker 00:
Second, with respect to that issue, their own expert identifies in his deposition

[00:24:22] Speaker 00:
that the only modification for him in here involved the routing table.

[00:24:27] Speaker 00:
So again, there's no evidence to support these other modifications.

[00:24:31] Speaker 00:
And their brief otherwise cites to Dr. Kalanidis' declaration, as the board did as well, at paragraphs 140 through 143 as showing what the modification is here.

[00:24:44] Speaker 00:
But when you look at the Kalanidis, that's their expert declaration,

[00:24:48] Speaker 00:
It doesn't have any discussion about what the modification in Alden is.

[00:24:52] Speaker 00:
It just assumes, at most, that there's a modification in Alden and that you have the proposed combination that would avoid any need for a modification in Alden.

[00:25:04] Speaker 00:
So the evidence doesn't speak to these other modifications and otherwise gets back to this core question on the board's error in finding that this was a change that would have motivated a person of skill in the art.

[00:25:14] Speaker 00:
It is not.

[00:25:16] Speaker 02:
Mr. Paglia, we're out of time.

[00:25:17] Speaker 02:
Do you have a final thought?

[00:25:19] Speaker 00:
Your Honor, thank you, Your Honor.

[00:25:21] Speaker 00:
If this case has sufficient evidence to support a motivation to combine references based on this lack of record evidence for all the reasons I pointed out and emphasized in our brief, then I submit that any motivation to combine would be sufficient to support a proposed combination.

[00:25:38] Speaker 00:
And for that reason, the board's decision should be reversed.

[00:25:41] Speaker 02:
I thank both counsels.