[00:00:00] Speaker 04:
Our next case for argument is 21-2274, Trusted Night Corporation versus IBM.

[00:00:07] Speaker 04:
Okay, counsel, tell me how to say your last name.

[00:00:10] Speaker 01:
It's actually very easy, Your Honor.

[00:00:12] Speaker 01:
It's Flocks, like flocks of sheep, and then Bart.

[00:00:14] Speaker 04:
Okay, Mr. Flocksbark, please proceed.

[00:00:17] Speaker 01:
Good morning.

[00:00:18] Speaker 01:
May it please the court, my name is William Flocksbark.

[00:00:21] Speaker 01:
I'm here on behalf of Trusted Night Corporation today.

[00:00:24] Speaker 01:
I was thinking a lot about this case as I flew here.

[00:00:27] Speaker 01:
And I was thinking about this question.

[00:00:30] Speaker 01:
Why do we have the obviousness doctrine?

[00:00:33] Speaker 01:
Why is it there?

[00:00:34] Speaker 01:
Because that's pretty much the key issue that's at play here.

[00:00:38] Speaker 01:
And I'm obviously going to get into detail with respect to the references and the facts of this case.

[00:00:43] Speaker 01:
But from our point of view, Your Honor, we have, Your Honors, we have the obviousness doctrine to prevent the issuance of patents which would inevitably and soon

[00:00:54] Speaker 01:
Others in the art would have come up with the same idea.

[00:00:57] Speaker 01:
Here, that's simply not the case.

[00:00:59] Speaker 01:
And certainly, the board did not identify any substantial evidence in their rulings otherwise.

[00:01:06] Speaker 01:
From my argument today, I want to focus on the lack of substantial evidence to combine Watterson and Ross.

[00:01:12] Speaker 01:
There's a lot of issues in our briefing, but I think that's the key issue that I'd like to talk about and then maybe finish up if we have time on the claim construction.

[00:01:21] Speaker 01:
In order to understand why there isn't evidence here to combine these, not substantial evidence, I think it's worth at least mentioning again, although we covered this extensively in our briefs, the three kinds of attacks on security that we're talking about in these different references.

[00:01:39] Speaker 01:
There's one that we call keystroke keylogging.

[00:01:42] Speaker 01:
There's one that we call phishing, and there's the form grabbing.

[00:01:45] Speaker 01:
Form grabbing is the focus of the patent.

[00:01:47] Speaker 01:
In this case, neither Ross nor Watterson, which deal with the other two kinds of attacks, address form grabbing in any way in their disclosures.

[00:01:57] Speaker 01:
Watterson is a patent that is directed to keystroke keylogging defense.

[00:02:00] Speaker 01:
It specifically operates at a very low level in the computer before the web browser and everything else get involved.

[00:02:08] Speaker 01:
messes with the keys, it moves the things around, but it essentially deals with passing protected information between applications which are resident in the computer itself.

[00:02:19] Speaker 00:
But as you say, the issue is obviousness, not anticipation.

[00:02:24] Speaker 00:
That's correct, Your Honor.

[00:02:25] Speaker 00:
The fact that the references aren't exactly the same is not the point.

[00:02:29] Speaker 01:
That's right, but it is important, Your Honor, that the references don't combine well.

[00:02:34] Speaker 01:
The Watterson and the Ross reference don't play well together.

[00:02:37] Speaker 01:
Ross, if combined with Watterson in the way that IBM suggests it combines, renders Watterson not operative for what it actually is doing in the first place.

[00:02:46] Speaker 01:
The way that they're proposing we would use it would be that we take Ross, and on the trigger event of the form submission event, we activate Watterson.

[00:02:55] Speaker 01:
And now we take those benefits and try to use them.

[00:02:57] Speaker 01:
But at that point,

[00:02:58] Speaker 01:
They're no longer working to prevent key logging, because it's waiting that time in order to do that.

[00:03:04] Speaker 01:
It fundamentally defeats the purpose of Watterson, in which case we just can't combine those two references.

[00:03:10] Speaker 01:
Because if you defeat the initial purpose of a thing by combining it with something else, then we're not permitted to combine.

[00:03:16] Speaker 01:
And I think that's critical with respect to these two references, in addition to which nobody's going to be looking to combine these references for this particular problem.

[00:03:25] Speaker 01:
our position, trusted Knight's position, has always been that form grabbing defense is not a motivation to combine these two references.

[00:03:35] Speaker 01:
And IBM conceded that in their reply brief below.

[00:03:39] Speaker 01:
The logic that the board then adopted was that the board said a person of ordinary skill would have been motivated to combine Watterson's anti-key logging software with Ross's form submission event

[00:03:53] Speaker 01:
to provide an additional level of protection against form grabbing key logging software that Watterson alone does not provide.

[00:03:59] Speaker 01:
But both of the parties in this case had either specifically argued against that position or had abrogated it in their later briefing.

[00:04:08] Speaker 01:
In other words,

[00:04:09] Speaker 01:
The parties, I always like to say, the parties decide the battleground of their litigation.

[00:04:15] Speaker 01:
And in this case, the parties fundamentally agreed that form grabbing was not a reason to motivate to combine these references.

[00:04:22] Speaker 01:
But the board found so anyway, which is impermissible.

[00:04:26] Speaker 03:
Is that your argument that the motivation to combine theory that the board credited was actually waived by IBM?

[00:04:34] Speaker 01:
That's correct, Your Honor.

[00:04:34] Speaker 03:
Can you show me where they waived it?

[00:04:36] Speaker 03:
Where is that in our record?

[00:04:38] Speaker 01:
In Appendix 626, that's where IBM says that defeating form grabbers is not the motivation for combining Watterson and Ross, specifically that exact sentence.

[00:04:48] Speaker 03:
And what about their expert?

[00:04:50] Speaker 03:
Did he not opine on that point?

[00:04:52] Speaker 01:
I mean, their expert spent, frankly, more time basically saying,

[00:04:57] Speaker 01:
that a trusted Knight's expert was not reliable and attacking trusted Knight.

[00:05:02] Speaker 01:
But in terms of an actual express motivation to combine, I see nothing in their expert's declaration or in the citations to their expert that actually gives an actual teaching for a form grabbing reason to combine.

[00:05:18] Speaker 01:
And I think, frankly, criticism of your opposing expert without more, even from an expert, isn't sufficient evidence to carry the day here.

[00:05:27] Speaker 01:
Have I answered your honor's question?

[00:05:29] Speaker 03:
Yes, thank you.

[00:05:35] Speaker 01:
So turning back to the three types of attacks that we've talked about, Watterson operates, again, at the very fundamental small level in the computer.

[00:05:47] Speaker 01:
It passes secure information from application to application, discloses absolutely nothing about transmitting to a secure location over the internet or over a network.

[00:05:57] Speaker 01:
Similarly, ROS is an anti-phishing defense.

[00:06:03] Speaker 01:
Phishing is a very specific kind of problem.

[00:06:06] Speaker 01:
Phishing occurs when you get a fake request for your password.

[00:06:10] Speaker 01:
You don't realize it's fake.

[00:06:11] Speaker 01:
You type in your password, beta, and take that password and use it elsewhere.

[00:06:15] Speaker 01:
ROS's solution to this is when I'm actually submitting a password to a real event, I engage a scrambling

[00:06:25] Speaker 01:
mechanism that actually predictably changes the password.

[00:06:28] Speaker 01:
So to the user, the user thinks the user's typing in the same original password.

[00:06:32] Speaker 01:
But as it gets passed to the actual recipient, so in this case a bank or whatever secure location, the password has been changed and is now different.

[00:06:41] Speaker 01:
And that is done the same way every time.

[00:06:42] Speaker 01:
The user never knows this is happening, never sees it happen.

[00:06:45] Speaker 01:
And so when the user's phished, the user gives what the user thinks is the password.

[00:06:49] Speaker 01:
But because the scrambling mechanism of ROS is not engaged,

[00:06:54] Speaker 01:
The wrong password gets sent to the Fisher, and they cannot use that to use for the user's credentials in a secure location.

[00:07:02] Speaker 01:
Neither of these deals with form grabbing, because of the way the form grabbing works is form grabbing grabs the actual information out of the form as it is submitted to the secure location.

[00:07:13] Speaker 01:
So neither Watterson nor Ross address form grabbing.

[00:07:16] Speaker 01:
And in combination with Ross, Watterson is rendered inoperable.

[00:07:34] Speaker 01:
I'll turn to maintaining your honors.

[00:07:36] Speaker 01:
We addressed this briefly, and I'm not sure we need to spend a lot of time on it today.

[00:07:40] Speaker 01:
But the 473 patent describes a system that negotiates a preferred priority location in the API stack automatically.

[00:07:48] Speaker 01:
What that means is there's a software that says, I want to be the highest priority piece of software.

[00:07:53] Speaker 01:
And any time it sees that it's falling out of that stack, it automatically moves itself to the top.

[00:07:58] Speaker 01:
That's what's described in the patent.

[00:08:02] Speaker 01:
in the 473, and it says it operates by software, it operates at any time, and it operates as a renegotiation.

[00:08:10] Speaker 01:
Each of those words indicates that this is done automatically by software without user intervention.

[00:08:15] Speaker 01:
Because no user intervention is described or required, the only reference even in combination that can be used with respect to this particular claim element is Watterson.

[00:08:25] Speaker 01:
But Watterson specifically requires user intervention in that Watterson notices that it's fallen out of priority and then asks the user to intervene to restore its priority by rebooting its machine.

[00:08:35] Speaker 01:
This is fundamentally different than any claim construction of maintaining a cap.

[00:08:39] Speaker 03:
What do you see in your patent that would disclaim embodiments in which there is some user intervention?

[00:08:48] Speaker 01:
The fact that we specifically require it to be done by software is what I would say, Your Honor.

[00:08:54] Speaker 03:
What limits the claims to doing it by software?

[00:08:58] Speaker 03:
That's not in the claims, is it?

[00:09:00] Speaker 01:
If we construe the word maintaining to require it to be done by software, in other words, without user intervention.

[00:09:06] Speaker 03:
If we did, but I guess I'm looking for we wouldn't typically narrow the term maintaining

[00:09:14] Speaker 03:
to eliminate the possibility that there may be some user intervention.

[00:09:19] Speaker 03:
And I understand what you've pointed to in the patent that you think supports, I suppose in some affirmative sense, your narrower construction.

[00:09:28] Speaker 03:
But I don't think we normally would narrow construction just based on the limited type of things you pointed to.

[00:09:35] Speaker 03:
There's no disclaimer.

[00:09:36] Speaker 03:
There's no words of exclusion.

[00:09:38] Speaker 03:
Or if there are, please point them out.

[00:09:40] Speaker 01:
There's certainly, I can't point to any words of exclusion, particularly, Your Honor, other than that it's specifically described as being a renegotiation.

[00:09:47] Speaker 01:
It's done by software.

[00:09:48] Speaker 01:
It's done automatically.

[00:09:49] Speaker 01:
Those things don't require user intervention.

[00:09:53] Speaker 01:
There's certainly, I agree with Your Honor, there's nothing specifically in the language of the claims other than maintaining as we contend it would be properly construed, which would limit us to excluding users.

[00:10:08] Speaker 01:
And I see I'm just about out of time.

[00:10:10] Speaker 01:
Have I answered your honor's question?

[00:10:11] Speaker 01:
You have.

[00:10:14] Speaker 04:
Thank you.

[00:10:14] Speaker 04:
Mr. McKee, please proceed.

[00:10:16] Speaker 02:
Thank you, your honor.

[00:10:18] Speaker 02:
May it please the court?

[00:10:20] Speaker 02:
Your honor, the appellant here argues that IBM did not and cannot meet the substantial evidence standard of review.

[00:10:26] Speaker 02:
The appellant claims that IBM's invalidity theories are supported by merely attorney argument, that they're ipsa dixit, and that IBM's expert's conclusions are irrational and illogical.

[00:10:36] Speaker 02:
None are true.

[00:10:37] Speaker 02:
There's ample evidence in the record supporting each and every conclusion the board reached.

[00:10:42] Speaker 02:
Before I get into the specific arguments that counsel just raised, which I'll do in a moment, I want to address first the broader point that IBM's arguments lack evidentiary support.

[00:10:52] Speaker 02:
This mischaracterizes the record and essentially asks this court to disregard all of IBM's record evidence in reply below.

[00:10:59] Speaker 02:
The fact of the matter is that for every single argument, trusted Knight now raises

[00:11:05] Speaker 02:
IBM addressed the underlying facts with expert testimony.

[00:11:08] Speaker 02:
And that expert testimony was both considered and credited by the board.

[00:11:12] Speaker 02:
There's not a single instance here where the board relied on pure attorney argument or misunderstood what either IBM or trusted Knight argued.

[00:11:19] Speaker 02:
The board fully understood the arguments.

[00:11:21] Speaker 02:
It simply rejected trusted Knights.

[00:11:24] Speaker 02:
So I'll start with the waiver point or repudiation point, since counsel raised that in his argument.

[00:11:31] Speaker 02:
This argument essentially says that IBM changed their theory between the petition

[00:11:35] Speaker 02:
and the reply.

[00:11:37] Speaker 02:
But respectfully, that's not what happened.

[00:11:38] Speaker 02:
IBM didn't abrogate its motivation to combine theory.

[00:11:43] Speaker 02:
To see this, all you have to do is take a look at the paragraph in reply where the allegedly offending sentence comes from, and that's Appendix 625.

[00:11:52] Speaker 02:
And it's clear that IBM was responding to an argument raised by Trusted Knight.

[00:11:56] Speaker 02:
That paragraph begins, Trusted Knight then argues that because neither reference is specifically directed at defeating form-grabbing malware,

[00:12:04] Speaker 02:
that a person of skill would not have been motivated to combine them.

[00:12:07] Speaker 02:
So what IBM was doing was responding to the argument that the prior art cannot render obvious or would never be combined unless it refers to exactly the same problem that the patent is allegedly directed to.

[00:12:20] Speaker 02:
There was no change in theory.

[00:12:22] Speaker 02:
All along, it has been IBM's argument

[00:12:25] Speaker 02:
and position supported by its expert that the motivation to combine here is to address additional security holes.

[00:12:33] Speaker 02:
It's a principle in computer science called complete mediation that IBM referred to throughout the record.

[00:12:39] Speaker 03:
OK, but that paragraph does conclude on the next page by saying defeating form grabbers is not the motivation for combining Watterson and Ross.

[00:12:50] Speaker 03:
IBM said that.

[00:12:51] Speaker 02:
I agree, Your Honor, and I think perhaps there's some ambiguity there.

[00:12:54] Speaker 02:
The sentence there was intended to refer to that same argument, that the motivation to combine is not specifically form grabbers, because neither reference talks about form grabbers.

[00:13:05] Speaker 02:
The motivation to combine here is this principle of complete mediation, which is also referred to earlier, just the sentence earlier in the paragraph.

[00:13:14] Speaker 02:
The resulting combined system would provide protection against various kinds of key loggers, including both hook-based and form grabbing key loggers.

[00:13:22] Speaker 02:
Perhaps the word specifically could have been included there in that final sentence.

[00:13:27] Speaker 02:
But IBM was not changing its position.

[00:13:29] Speaker 02:
And you can also look at IBM's expert testimony and support here in the appendix.

[00:13:36] Speaker 02:
And you'll see that IBM's position all along has been complete mediation, defeating additional security holes.

[00:13:46] Speaker 02:
The reason that you make that combination here is because Watterson is about

[00:13:51] Speaker 02:
as counsel indicated, defeating keyloggers that operate at the kernel level.

[00:13:55] Speaker 02:
And it protects the keystrokes all the way up to the local application.

[00:13:58] Speaker 02:
And then Ross comes in after that.

[00:14:00] Speaker 02:
And Ross says, well, there's another place where keystrokes can be stolen.

[00:14:04] Speaker 02:
It can be stolen by phishing attacks or other attacks as well.

[00:14:07] Speaker 02:
And that's within web browser forms.

[00:14:10] Speaker 02:
And that's why it proposes this additional trap, this before-navigate form submission event trap, to protect that aspect of the software as well.

[00:14:20] Speaker 04:
Council, I guess I'm confused about one thing.

[00:14:23] Speaker 04:
Opposing counsel said that neither Watterson nor Ross are directed to forum grabbers, that kind of malware.

[00:14:33] Speaker 04:
I get that concept.

[00:14:34] Speaker 04:
Certainly, the word forum grabbers, that doesn't appear in either of those references.

[00:14:40] Speaker 04:
But I thought that does Ross, am I remembering right, that Ross references before navigate

[00:14:47] Speaker 02:
Ross expressly references Before Navigate.

[00:14:49] Speaker 04:
And isn't, if I understand Before Navigate right, according to the board, that is basically, I mean, a form-grabbing, key-logging malware thing?

[00:15:03] Speaker 04:
I mean, so when you said Ross is not directed to form-grabbing malware, I'm a little confused because I think the board made an express finding that Ross, in fact, talks about

[00:15:15] Speaker 04:
before navigate, which is some sort of form-related thing.

[00:15:22] Speaker 02:
I'm sorry.

[00:15:22] Speaker 02:
And I apologize if there's any confusion here.

[00:15:24] Speaker 04:
I realize I was about as inartful as I could have said that.

[00:15:26] Speaker 02:
Well, and I was probably inartful in my argument as well.

[00:15:30] Speaker 02:
Ross reference is about defeating, it talks about fishing primarily, but it also does talk about key loggers.

[00:15:38] Speaker 02:
And specifically the way it defeats attacks is it uses the before navigate trap to make sure that nothing is kind of hooking into the form and stealing the keystrokes from there.

[00:15:49] Speaker 02:
That's what form grabbers do.

[00:15:50] Speaker 02:
That's what the 473 patent says that form grabbers do.

[00:15:53] Speaker 04:
Why would you say that Ross isn't directed at all to form grabbers if

[00:15:59] Speaker 04:
it is specifically targeting this, you know, before Navigate 2.

[00:16:06] Speaker 02:
Yeah, it's been a bit of a moving target here, and the reason I said that is because it doesn't use the word form grabbing, right?

[00:16:14] Speaker 02:
But it does talk about, because the appellant here has interpreted form grabbing keyloggers, which are a class of keyloggers, as being a unique problem, right?

[00:16:27] Speaker 02:
And they say that the 473 patent is the very first instance where anyone came up with a solution to the farm grabbing key logger problem.

[00:16:34] Speaker 02:
What we've presented evidence to show is that ROS, it may not talk about form grabbing key loggers.

[00:16:41] Speaker 02:
It may not mention them specifically.

[00:16:43] Speaker 02:
But it provides a solution that defeats them.

[00:16:45] Speaker 02:
It recognizes the security risk, which is the forms where keystrokes can be stolen by phishing attacks or key loggers or what have you.

[00:16:54] Speaker 02:
And it provides a solution to that security risk, which is this before navigate trap, which is also the same way that the 473 patents claims are written.

[00:17:03] Speaker 02:
Does that answer the question?

[00:17:04] Speaker 02:
Yes.

[00:17:05] Speaker 02:
Thank you.

[00:17:06] Speaker 02:
It's also worth pointing out that the board also rejected the argument that the patent here is directed specifically to form grabbing.

[00:17:15] Speaker 02:
It's not.

[00:17:16] Speaker 02:
It's directed more generally to preventing key logging malware.

[00:17:20] Speaker 02:
I can point, Your Honors, to column nine of the patent, the 473 patent, where it says, the invention protects against at least the following threats.

[00:17:28] Speaker 02:
And then it lists, I could count them, but I think it's nine different things and one of those form grabbers.

[00:17:34] Speaker 04:
But we look at claims, right?

[00:17:36] Speaker 02:
Correct.

[00:17:36] Speaker 04:
So why does the board say, oh, we're worried about all kinds, the specifications is worried about all kinds of threats, but we've got to focus on what the particular claims were each directed to.

[00:17:47] Speaker 02:
The question of what the patent is directed to and what the claims are directed to is relevant to the motivation to combine analysis here because

[00:17:55] Speaker 02:
the appellant says that the only thing you would ever look at is whether there's form-gravers.

[00:18:00] Speaker 02:
Do these references talk about form-gravers?

[00:18:03] Speaker 02:
If not, then they can't render the patent obvious.

[00:18:07] Speaker 02:
And the patent here in the claims.

[00:18:12] Speaker 04:
Try to think like a patent lawyer and be a little more precise.

[00:18:14] Speaker 04:
You can't render a patent obvious.

[00:18:16] Speaker 04:
We don't care what a patent is directed to.

[00:18:18] Speaker 04:
We care what the claims are directed to.

[00:18:21] Speaker 04:
So claim one is directed

[00:18:23] Speaker 04:
to form submissions, detecting anti-logger, keylogger, a browser with form submissions.

[00:18:31] Speaker 04:
So why would these two references, Waterson and Ross,

[00:18:36] Speaker 04:
be combined in order to render this obvious?

[00:18:41] Speaker 04:
If this were the invention, claim one, because actually that is the claimed invention, why would Ross and Watterson be combined for that purpose?

[00:18:52] Speaker 02:
Absolutely, Your Honor.

[00:18:52] Speaker 02:
So I can point you to the last limitation of the claims, right?

[00:18:55] Speaker 02:
The last limitation of the claim says that you do all of these steps to protect against the threat of key logging malware capturing the confidential data.

[00:19:02] Speaker 02:
So both Waterson and Ross are directed at defeating keyloggers of different kinds.

[00:19:07] Speaker 02:
Waterson is directed to keyloggers that are installed at that kernel level, all the way up to the local application, stealing keys along the way.

[00:19:15] Speaker 02:
And then Ross is directed at different keyloggers that can steal that information in the forms in the application.

[00:19:24] Speaker 02:
And they propose different mechanisms for solving those problems.

[00:19:29] Speaker 02:
A person of skill looking at both references would be motivated to plug both of those security risks simultaneously.

[00:19:36] Speaker 02:
So the idea is that the patent is about, and you see this in the claims as well, it's about key logging more generally.

[00:19:43] Speaker 02:
And it just provides an additional piece, this before navigate trap that's also in Ross, for providing that protection to browser forms the same way Ross does.

[00:19:53] Speaker 02:
If there's no more questions on that, Your Honor, I'm going to move to the maintaining argument.

[00:19:59] Speaker 02:
So you heard Appellant argue that the board got it wrong on maintaining, that maintaining should require automatic behavior, that it can't require intervening user action.

[00:20:12] Speaker 02:
Now tellingly here, Appellant has never proposed a construction for the term, either here or below.

[00:20:16] Speaker 02:
They've simply said that it must be limited to automatically maintaining.

[00:20:22] Speaker 02:
You see this in IBM's brief at 56.

[00:20:26] Speaker 02:
IBM, on the other hand, has said that the term should have its plain meaning.

[00:20:29] Speaker 02:
And we know the rules for plain meaning.

[00:20:32] Speaker 02:
You only deviate from plain meaning in certain circumstances.

[00:20:34] Speaker 02:
There's disclaimer, there's disavowal, there's prosecution history estoppel, et cetera.

[00:20:38] Speaker 02:
None of these are present here, and they're not even argued in the briefs.

[00:20:42] Speaker 02:
In support of its argument, appellant points to one sentence, a single sentence in a portion of the specification that talks about renegotiating.

[00:20:48] Speaker 02:
And you heard him say that that's support for the automatic construction.

[00:20:52] Speaker 02:
But that sentence in the specification doesn't use the word automatic and doesn't talk about anything being automatic.

[00:20:57] Speaker 02:
It doesn't talk about maintaining.

[00:21:00] Speaker 02:
It doesn't use the word.

[00:21:01] Speaker 02:
That word, maintaining, is used elsewhere in the patent.

[00:21:04] Speaker 02:
To describe figure six, it talks about maintaining position in the API stack.

[00:21:09] Speaker 02:
It also does not describe doing it automatically.

[00:21:13] Speaker 02:
This is exactly what you don't do in a claim construction analysis.

[00:21:16] Speaker 02:
There is nothing in this patent supporting a limiting construction.

[00:21:20] Speaker 02:
And the portion of the specification that Trustee Knight has pointed to doesn't support it.

[00:21:27] Speaker 02:
During the proceedings below, the maintaining construction didn't even come to a head until the hearing.

[00:21:34] Speaker 02:
The parties had not argued that the term required construction.

[00:21:38] Speaker 02:
And then during the hearing, it came up.

[00:21:40] Speaker 02:
But before that,

[00:21:42] Speaker 02:
the party's experts had submitted conflicting testimony about whether the prior art read on the maintaining term.

[00:21:51] Speaker 02:
That's what we're talking about when we're talking about a subsidiary factual finding here, because what actually happened here was that the board was evaluating whether the prior art rendered maintaining obvious.

[00:22:01] Speaker 02:
The board looked at the disclosures of Waterson and the testimony of IBM's expert.

[00:22:05] Speaker 02:
That's at appendix 41, the final written decision, and the cited testimony is at 2137 and 2138.

[00:22:13] Speaker 02:
The fact of the matter is here that there's nothing whatsoever in the patent indicating that maintaining must be automatic.

[00:22:19] Speaker 02:
You heard counsel say that it's because it's software.

[00:22:25] Speaker 02:
But Watterson is software as well.

[00:22:27] Speaker 02:
And Watterson does it without it being automatic.

[00:22:30] Speaker 02:
It has this intervening rebooting step.

[00:22:34] Speaker 02:
You also heard him say that it renegotiates automatically, that that's what this portion at column 5, lines 36 to 40 says.

[00:22:41] Speaker 02:
But it doesn't say that.

[00:22:42] Speaker 02:
The word automatic is nowhere to be found there.

[00:22:44] Speaker 02:
And neither is any concept like automatic.

[00:22:48] Speaker 02:
Maintaining can mean different things.

[00:22:50] Speaker 02:
The plain meaning of maintaining does not require that it be done automatically.

[00:22:53] Speaker 02:
And the Waterston system, which simply says,

[00:22:57] Speaker 02:
You've been keeping an eye on where in the API stack your software is.

[00:23:00] Speaker 02:
And look, you've been moved out of the top position.

[00:23:03] Speaker 02:
Why don't you restart to put yourself back there?

[00:23:05] Speaker 02:
Then you'll be the most secure is a fine solution to the problem and one that renders the claims obvious.

[00:23:11] Speaker 02:
The claims do not require more.

[00:23:13] Speaker 04:
OK.

[00:23:13] Speaker 04:
Thank you very much, Mr. McLean.

[00:23:18] Speaker 04:
Mr. Lockspark.

[00:23:24] Speaker 01:
I'll just touch on a couple of points.

[00:23:28] Speaker 01:
One thing I will say is, in terms of the claim construction motivation to limit, in addition to what we've already identified, and I won't waste time going over that again, there's also obviously the claim construction tenant that we do construe the claims to try to preserve their validity.

[00:23:43] Speaker 01:
I give that to Your Honors for what it's worth.

[00:23:48] Speaker 01:
Your Honor, Chief Judge Morris has an interesting question about form submission and the Before Navigate event.

[00:23:55] Speaker 01:
I'd like to talk briefly about that.

[00:23:58] Speaker 01:
Ross activates its anti-phishing feature based on the Before Navigate event.

[00:24:04] Speaker 01:
It then fills in the field with its generated password.

[00:24:09] Speaker 01:
So you type your password, Ross activates, changes your password, submits it to the

[00:24:14] Speaker 01:
a secure institution via the form submission event.

[00:24:17] Speaker 01:
That is where the form grabber activates.

[00:24:21] Speaker 01:
So Ross expressly does not defend against form grabbing.

[00:24:24] Speaker 01:
Ross is vulnerable to form grabbing.

[00:24:26] Speaker 01:
Ross identifies itself as an anti-fishing defense.

[00:24:30] Speaker 01:
And Ross specifically states that it's not a key logger defense because it doesn't work for that.

[00:24:35] Speaker 01:
So combining Ross with Watterson doesn't make sense because Watterson specifically is a key logger defense.

[00:24:42] Speaker 01:
And combining the two,

[00:24:43] Speaker 01:
changing the timing of activation of Waterson is going to change its operation and, again, prevent it from not keylogging.

[00:24:51] Speaker 01:
Keylogging will now occur.

[00:24:53] Speaker 01:
So keystroke keylogging, to be clear, can still occur if we change the activation point of Waterson.

[00:24:59] Speaker 01:
And if we look at the activation point of Ross, Ross doesn't defend against form grabbing.

[00:25:05] Speaker 01:
So neither Ross nor Waterson protect against form grabbing, nor can their combination protect against form grabbing.

[00:25:15] Speaker 01:
And that's irrelevant to when it's triggered, if it's not triggered at the appropriate time.

[00:25:25] Speaker 01:
Council brought up the complete mediation doctrine.

[00:25:30] Speaker 01:
I don't want to spend a whole ton of time on this, but if Council's arguments on complete mediation from below were to be given credence, essentially no computer security software patent would ever be issued again.

[00:25:44] Speaker 01:
The whole concept of complete mediation is so broad and sweeping that if it's considered to be prior art, it's going to annihilate an entire category of potential intellectual property

[00:25:56] Speaker 01:
Council said that Council invited Your Honors to look at the statements of their expert.

[00:26:00] Speaker 01:
And I joined in that invitation.

[00:26:02] Speaker 01:
I think if you look at their statements of their expert, you will see that all of the relevant cited portions of their expert statements that they identified cite back either to IBM, cite back to nothing but argument, and an attack on trusted Knight's expert.

[00:26:18] Speaker 01:
Fundamentally and critically, there's no express teaching that he points to or explains for a reason to combine Watterson and Ross

[00:26:26] Speaker 01:
order to obviate against form-grabbing key log and then unless your honors have any other questions I think both counsel for their arguments this case is taken under submission