[00:00:00] Speaker 00: The next case is 22-1048, Finjen LLC versus Sonic Wall, Inc. [00:00:10] Speaker 00: Councilor Brooks, you've reserved of your 15 minutes, you've reserved five minutes of your time for rebuttal, correct? [00:00:16] Speaker 00: I have, Your Honor. [00:00:17] Speaker 00: Okay. [00:00:18] Speaker 00: We're ready to go, Your Honor. [00:00:19] Speaker 01: Thank you. [00:00:20] Speaker 01: Good morning, Your Honor. [00:00:22] Speaker 01: It's a pleasure to be back before the court in person to see everyone's faces. [00:00:28] Speaker 01: With the court's permission, I would like to start with the district court's granting of summary judgment of non-infringement [00:00:45] Speaker 01: on the 494, the 844, and the 780. [00:00:51] Speaker 01: When the briefing was initially done, Sonicwell argued that there was no need to reach the merits of that because in another case, the ESET case, the court had found the term downloadable to be indefinite. [00:01:09] Speaker 01: that ESET court has now ruled on that and in fact reversed. [00:01:13] Speaker 01: And downloadable is no longer indefinite. [00:01:15] Speaker 01: So now we have the 494, the 844, and the 780 back alive and well in this case. [00:01:23] Speaker 01: So we do reach the merits then of whether or not the court was correct in granting summary judgment of non-infringement based once again on the term downloadable. [00:01:33] Speaker 01: So what we have is a claim that reads [00:01:37] Speaker 01: Claim 10 of the 494, for example, at appendix 182 through 209, a receiver for receiving an incoming downloadable. [00:01:47] Speaker 01: What Sonic Wall successfully argued to the district court was that there is never [00:01:55] Speaker 01: a downloadable received by a receiver and the reason being that the downloadable is an executable application program which is downloaded from a source computer and run on the destination computer. [00:02:15] Speaker 01: All the parties agreed and the court so found in the court's opinion at appendix 57 [00:02:19] Speaker 01: that it is undisputed that network devices transmit files in a sequence of packets. [00:02:27] Speaker 01: Therefore, it is undisputed that this claim term, if the claim is interpreted the way the court, and Sonic Ball argued successfully in the court interpret, that upon receipt, the downloadable has to be already executable, then it reads out all embodiments, because the internet [00:02:48] Speaker 01: always, virtually always, transmits files in a sequence of packets. [00:02:54] Speaker 01: Instead, what we actually have here is a semantic issue. [00:02:59] Speaker 01: An executable application program is simply a type of file, .exe. [00:03:05] Speaker 03: But you agree to the construction for downloadable, right? [00:03:08] Speaker 01: Isn't that an agreed construction from the parties? [00:03:10] Speaker 01: Absolutely, Your Honor. [00:03:11] Speaker 01: And in fact, that is what the ESET court has now so found, that a downloadable is an executable or interpretable application program. [00:03:20] Speaker 01: So it's now a matter of law. [00:03:21] Speaker 01: That is the correct construction. [00:03:22] Speaker 01: We don't dispute that. [00:03:24] Speaker 01: What we dispute is the way the court read it, which is that that means that at the time [00:03:29] Speaker 01: it is received at the receiver, it has to be executable. [00:03:34] Speaker 01: The court imported a temporal limitation. [00:03:37] Speaker 03: I think the actual construction, maybe let me just follow along with your argument that you're making here, Counsel. [00:03:42] Speaker 03: It says executable application program, which is downloaded from a source computer and run the destination computer, right? [00:03:48] Speaker 03: That's the Greek construction? [00:03:49] Speaker 03: Yes, ma'am. [00:03:51] Speaker 03: And then just so I understand, isn't it almost just an outcome [00:03:57] Speaker 03: in light of the construction that you agreed to, that it really would need to be executable at these different points. [00:04:02] Speaker 03: I mean, you're implying that that's not the case. [00:04:04] Speaker 03: Tell me more about why. [00:04:07] Speaker 01: That's not the case, Your Honor, because in speaking to an executable application program, what did the inventors have in mind? [00:04:14] Speaker 01: If we look specifically at, let's look at the 494 at appendix 205, column 5, lines 20 through 28. [00:04:25] Speaker 01: Inventors are describing how a file type detector receives and determines. [00:04:31] Speaker 01: What column and line again? [00:04:33] Speaker 01: I'm sorry. [00:04:33] Speaker 01: I went too fast. [00:04:34] Speaker 01: I just missed it. [00:04:35] Speaker 01: It's column five, lines 20 through 20. [00:04:39] Speaker 01: I'm sorry. [00:04:40] Speaker 01: I misread it. [00:04:41] Speaker 01: I can't read my own handwriting. [00:04:42] Speaker 01: Column 15. [00:04:44] Speaker 01: That's where I got wrong, Your Honor. [00:04:46] Speaker 01: Sorry. [00:04:46] Speaker 01: It's column 15. [00:04:48] Speaker 01: Lines 20 through 28. [00:04:50] Speaker 01: So the inventor are describing, we've got a potential downloadable, it has a file header, which by the way, Sonic Wall also argues means it's not executable, because as long as the file header's there, you have to strip that away before it becomes executable. [00:05:07] Speaker 01: Of course it has to have a file header, it's the IP address, how else does it know where to go? [00:05:11] Speaker 01: and that it then talks about these various executable or standard, in a sense, .exe file format. [00:05:20] Speaker 01: And then if we go to the end of that paragraph, it distinguishes it from, for example, a .com, or I would say it can be distinguished from a .jpeg, or a .pdf, or a .com. [00:05:35] Speaker 03: If I'm looking at the correct portion of the specification you're pointing to, it talks about a potential downloadable. [00:05:41] Speaker 03: Is that right? [00:05:42] Speaker 01: It originally starts with a potential downloadable. [00:05:46] Speaker 01: Maybe if I could give a little more background. [00:05:48] Speaker 01: These were pioneering patents. [00:05:51] Speaker 01: The internet was just getting going. [00:05:53] Speaker 01: These inventors were looking at ways to stay ahead of the hackers. [00:05:57] Speaker 01: And it's the .exe files that were the most dangerous because those are the ones that get, as the construction says, executed [00:06:06] Speaker 01: at the source computer. [00:06:08] Speaker 01: When that execution takes place, that's when, if there's malware in there, your source computer, I'm sorry, not source computer, destination computer is going to get contaminated. [00:06:20] Speaker 01: So claims don't talk about potential downloadable, they talk about downloadable, correct? [00:06:25] Speaker 01: Correct, Your Honor, and this begins by talking about potential. [00:06:28] Speaker 01: So we're looking, we're looking now, is this a potential downloadable? [00:06:33] Speaker 01: And then it goes on and describes [00:06:35] Speaker 01: For example, do we have executable code? [00:06:38] Speaker 01: It specifically says that. [00:06:39] Speaker 01: Now it becomes a downloadable if there's executable in there. [00:06:43] Speaker 01: If it doesn't have executable code, if it's a .pdf or a .jpeg or a .doc or document, then this invention isn't worried about it. [00:06:55] Speaker 01: It's looking for, is it an executable? [00:06:58] Speaker 01: It doesn't have to be executable at the time it gets to the receiver because it can't be. [00:07:04] Speaker 01: It gets packetized. [00:07:06] Speaker 00: Did you present evidence that the packet that's received at the sonic wall gateways could be executed at the time that it was received there? [00:07:15] Speaker 01: No, Your Honor, it is packetized. [00:07:17] Speaker 01: And so at the time of receipt, it isn't executable, but it is not executed. [00:07:23] Speaker 01: It doesn't get executed until it goes to the destination computer, at which point it is reassembled, and now you have your full file again. [00:07:33] Speaker 01: And that's just how the internet works, and that's how the inventors knew the internet to work. [00:07:38] Speaker 00: We know that at that point that the packet would be executable. [00:07:43] Speaker 01: The reason we know that in order for it, because the construction says run on the destination computer, run means executed. [00:07:53] Speaker 01: And so it can't get executed. [00:07:55] Speaker 01: And we agree with Sonigold on this. [00:07:57] Speaker 01: It can't get executed until it is reassembled. [00:08:01] Speaker 01: An example would be I go to a library. [00:08:04] Speaker 01: I ask for a book. [00:08:06] Speaker 01: I get handed one chapter at a time. [00:08:08] Speaker 01: That's how the library transmits its books. [00:08:11] Speaker 01: I'm going to have to reassemble that book, especially if they give me the chapters out of order. [00:08:17] Speaker 01: I'm going to have to reassemble that book before it can be read, in my case, by the [00:08:22] Speaker 01: the destination computer or execute it. [00:08:25] Speaker 01: And so what the court did here and what SonicWalk very cleverly did was convince the court to read out all embodiments. [00:08:33] Speaker 01: This is how the internet works. [00:08:35] Speaker 01: These pioneering inventors knew how the internet worked, wrote these claims to cover their invention, and their invention dealt with, they were looking for these EXE files, these executables. [00:08:49] Speaker 01: And once they determine that it contained executable code, now they're going to look for that malware. [00:08:56] Speaker 01: And they're going to keep it, firewall, they're going to keep it away from the destination computer so that when the destination computer executes the code, it doesn't also execute the malware or the Trojan course. [00:09:09] Speaker 00: I thought the district court's analogy using a cake. [00:09:13] Speaker 00: was a good one. [00:09:15] Speaker 00: What's your view about that analogy? [00:09:19] Speaker 01: I think that one is inapt because it isn't a thing that the district court, a cake was, the district court was saying, in my pantry, I've got flour, I've got sugar, I've got eggs. [00:09:31] Speaker 01: I think the puzzle one, however, the district court also used is more apt. [00:09:35] Speaker 01: I go to a store and I say, I want to buy this puzzle. [00:09:39] Speaker 00: And they took the cake. [00:09:40] Speaker 00: Pardon me? [00:09:41] Speaker 00: The cake's not done yet. [00:09:43] Speaker 00: You were talking about the cake. [00:09:44] Speaker 01: Oh, I just think it's not apt because it's not a thing. [00:09:47] Speaker 01: It's just pieces that may not end up a cake. [00:09:50] Speaker 01: It may end up a pizza. [00:09:51] Speaker 01: It may end up a color. [00:09:54] Speaker 01: In my case, it won't end up anything because I'm a terrible baker. [00:09:57] Speaker 01: So it will end up a disaster. [00:09:59] Speaker 01: But going to the other analogy used by the district court, though, of the puzzle, that is a thing. [00:10:04] Speaker 01: It's a concrete thing, just like an executable is a thing. [00:10:07] Speaker 01: And the district court said that if I go and buy a puzzle, [00:10:12] Speaker 01: It's not a puzzle until I put it all together. [00:10:15] Speaker 01: But it is a puzzle. [00:10:16] Speaker 01: That's the whole point of buying the puzzle, is to put it all together. [00:10:21] Speaker 01: And the user has asked for an executable file. [00:10:27] Speaker 01: And the way the internet works is that file is too big. [00:10:31] Speaker 01: And your honor may remember the ESET case about small versus not small. [00:10:35] Speaker 01: The file's too big to transmit all as one. [00:10:38] Speaker 01: And so it gets packetized. [00:10:39] Speaker 01: And the court found nobody disputes it. [00:10:41] Speaker 01: It's undisputed that network devices transmit files in a sequence of packets. [00:10:46] Speaker 01: So now it's chopped up. [00:10:49] Speaker 01: But I, the user, am waiting for and will get that executable file. [00:10:54] Speaker 01: So it gets sent over. [00:10:56] Speaker 01: It is packetized. [00:10:57] Speaker 01: It is at the receiver, which is also known as a gateway or a firewall. [00:11:01] Speaker 01: And at some point after it is scanned for malware, in order for it to get executed at the destination computer, it is reassembled. [00:11:11] Speaker 01: But this reassembly requirement is nowhere in the claim that it has to happen at the receiver. [00:11:17] Speaker 01: And even if it did have to happen at the receiver, that doesn't get around Sonic Wall's problem then, which is [00:11:24] Speaker 01: Sonicwell is saying when it gets there, it has to be executable. [00:11:29] Speaker 01: But then Sonicwell turned around and argued to the court that it has to get reassembled at the receiver so that the receiver is in possession of an executable. [00:11:38] Speaker 00: Counselor, you're into your rebuttal time. [00:11:40] Speaker 00: And I'm going to restore your time, but I don't want you to sit down yet. [00:11:44] Speaker 00: Can you get to the damages issue? [00:11:47] Speaker 01: Yes, Your Honor. [00:11:47] Speaker 01: I'll get to the damages issue. [00:11:48] Speaker 01: And I'd also like to very briefly talk about the 408, because this is actually an issue. [00:11:54] Speaker 01: May I talk about that first, Your Honor, if I talk about it very briefly? [00:11:57] Speaker 01: This is an issue that impacts not just this case, but all cases going forward. [00:12:02] Speaker 01: What Sonic Wall successfully argued to the district court with the Baldwin case, according to Sonic Wall, stands for the unremarkable proposition that, quote, while a computer can mean one or more computers, each of the one or more computers must perform the recited steps attributed to that computer. [00:12:25] Speaker 00: Does it matter that the word A appears in the preamble? [00:12:29] Speaker 00: No, Your Honor. [00:12:30] Speaker 01: I think Baldwin and all its progenies, semantic, paragon, communique, makes very clear that what they were trying to say is that a computer is not limited just to a single computer. [00:12:44] Speaker 01: It can be one or more. [00:12:45] Speaker 01: And that means that in the case, for example, of the way SonicWall works, if you look at the 408 claim, which is very lengthy. [00:12:54] Speaker 00: But is it the difference in this case, especially, that the word A is followed by the word V? [00:13:00] Speaker 01: No, actually Baldwin specifically addressed that too and specifically said that even though you then say the or said computer, if it starts with a or semantic actually was a computer, Baldwin was the fabric role, but he did say a fabric role and then the fabric role did not limit it to an individual. [00:13:19] Speaker 01: What do you say about the convolve case? [00:13:22] Speaker 01: uh... the convolt case your honor it's funny i was just looking at it yesterday and trying to remember why it was that the court found it so [00:13:35] Speaker 01: persuasive in that I couldn't find in convolve the issue that we're talking about here which is does Baldwin, it's really clear, does Baldwin and its progeny stand for the proposition that if it says a computer you can have more than one computer but every single computer has to perform all the claims. [00:13:57] Speaker 01: So do you have a distinction for convolve? [00:14:00] Speaker 01: I couldn't find one because I couldn't find what the court [00:14:03] Speaker 01: found was persuasive. [00:14:04] Speaker 01: I have it in my backpack, if Your Honor would like me to go look at it again. [00:14:08] Speaker 01: But I struggled with it. [00:14:10] Speaker 01: I truly did. [00:14:11] Speaker 01: Because I didn't see where this proposition was addressed. [00:14:14] Speaker 01: And it needs to be addressed for litigants going forward. [00:14:17] Speaker 01: Can you get around infringement if you have, for example, Sonic Wall, [00:14:23] Speaker 00: The Convo talks about Baldwin, and Baldwin talks about not having the word A in the preamble. [00:14:30] Speaker 01: That's right, Your Honor. [00:14:31] Speaker 01: Thank you for reminding me. [00:14:33] Speaker 01: That's not our claim. [00:14:35] Speaker 01: Our claim reads, the computer part comes later. [00:14:39] Speaker 01: The preamble is this, a computer processor-based multilingual method for scanning incoming program code comprising [00:14:50] Speaker 01: And the A computer doesn't show up in the preamble. [00:14:52] Speaker 01: It comes later. [00:14:53] Speaker 01: And the same with claim 22. [00:14:54] Speaker 01: Thank you for reminding me. [00:14:56] Speaker 01: That's why I was struggling with why did the court find convolve applicable when that's not how our claim reads, either claim 1 or claim 22. [00:15:06] Speaker 01: So this is a very important issue that we need clarification on from this court. [00:15:10] Speaker 01: Either Sonicwall and the district court is correct, in which case Baldwin really is kind of meaningless, or it's not correct, in which case it should be reversed. [00:15:19] Speaker 01: Your Honor, briefly on damages, with the Court's permission, I would just simply like to refer the Court, starting at Appendix 14953, running all the way through Appendix 13958. [00:15:38] Speaker 01: So we've got over 30 pages. [00:15:41] Speaker 01: is the expert report of Dr. Striegel. [00:15:44] Speaker 01: And he's not just a damages expert. [00:15:46] Speaker 01: He actually is a PhD professor of computer science and engineering at Notre Dame with over 20 years experience. [00:15:53] Speaker 01: And he lists very meticulously the analysis he did to do the apportionment. [00:16:01] Speaker 01: And most importantly, if we look at appendix 14961, he then takes not just the other technical experts' opinions, but he takes his own reading of the source code, discussions with all three of Finch's technical experts, the depositions of SonicWall employees, and all SonicWall documents. [00:16:27] Speaker 00: Is this confidential information? [00:16:29] Speaker 01: I don't believe so, Your Honor, no. [00:16:31] Speaker 01: He doesn't give details in these sections of this law. [00:16:34] Speaker 04: It's all marked confidential. [00:16:36] Speaker 04: Oh, it is marked confidential. [00:16:37] Speaker 04: In the appendix. [00:16:38] Speaker 04: But I don't know whether that people typically mark huge swaths of appendices of confidentiality, and they don't really mean it. [00:16:45] Speaker 01: I think that is exactly what happened here, because I know we argued this actually in public at the hearing. [00:16:51] Speaker 01: So the bottom line being this, if this is not sufficient to pass Daubert-Muster, then I truly don't know what is. [00:16:59] Speaker 01: Could there be a cross-examination? [00:17:01] Speaker 01: Of course there could be cross-examination. [00:17:02] Speaker 01: It goes to weight, not the admissibility. [00:17:04] Speaker 01: Well, what about these sub-features? [00:17:06] Speaker 01: And he discussed those at his deposition, why he didn't find them applicable. [00:17:10] Speaker 01: But as far as his actual analysis laid out in meticulous detail and almost 30 pages in his report, it has to be enough to pass Daubert muster. [00:17:22] Speaker 01: And if the court has no other questions, I'm two minutes into the red zone. [00:17:26] Speaker 01: So thank you very much. [00:17:27] Speaker 00: Thank you. [00:17:31] Speaker 00: Go day. [00:17:34] Speaker 05: Yes, your honor. [00:17:37] Speaker 05: Thank you and may it please the court. [00:17:39] Speaker 05: I will address the issues in the same order that Ms. [00:17:42] Speaker 05: Brooks did, unless the court has questions or wants me to address something else. [00:17:47] Speaker 05: Beginning with the downloadable issue, the question of whether or not something is, as she put it, executable literally upon arrival [00:17:56] Speaker 05: That really sort of shifts the focus from the issue that was dispositive here, which was everyone agreed that at no point ever does the accused gateway have in its possession even all of these packets, much less something that would satisfy the court's construction. [00:18:14] Speaker 05: They stipulated the construction. [00:18:16] Speaker 05: And more important than just stipulating the construction, and Judge Freeman quoted this, they said in the brief, there are no claim construction issues left to decide. [00:18:25] Speaker 05: This is nothing but evidence. [00:18:27] Speaker 05: And the evidence that Judge Freeman cited was the evidence from their expert about what it means to be executable. [00:18:35] Speaker 05: And what their expert said is that executable is a piece of code that actually executes. [00:18:42] Speaker 05: So again, no constructions left. [00:18:45] Speaker 05: and Judge Freeman said it over and over again, just show me the evidence, show me the evidence of the piece of code that actually executes on this gateway. [00:18:54] Speaker 05: Of course it doesn't exist. [00:18:56] Speaker 05: Arguments about what's in the specification, arguments about how everyone must know how the internet worked, that's the realm of claim construction. [00:19:05] Speaker 05: They told Judge Freeman there are no claim construction arguments here. [00:19:09] Speaker 05: Even so, [00:19:11] Speaker 05: to address the citations that Ms. [00:19:13] Speaker 05: Brooks went to, when you look at that citation at the bottom of column 15 of the 494 patent, [00:19:20] Speaker 05: Unambiguously, this is talking about complete files that are in executable form, inflating a compressed file, and now accessible including executables. [00:19:32] Speaker 05: The entire file is at the receiver, and the entire file as such gets analyzed by the receiver. [00:19:39] Speaker 05: There are absolutely no disclosures in any of these patents. [00:19:43] Speaker 02: Do you agree that executable means that it's capable of execution but doesn't have to be executed? [00:19:49] Speaker 05: Yes, with respect to, there are two different pieces of the construction. [00:19:55] Speaker 05: There's, executable means something, code that, I think, let's see, the precise language is, from their expert, is a piece of code that can actually execute, so can actually execute. [00:20:08] Speaker 05: That's part number one of the construction. [00:20:10] Speaker 05: Now, it does actually have to execute as an additional requirement [00:20:14] Speaker 05: at the destination computer. [00:20:15] Speaker 05: But that's a separate requirement. [00:20:16] Speaker 05: We're just focusing on the first part of the claim construction, which is it's got to be an executable. [00:20:23] Speaker 05: There are no disclosures anywhere in the specifications of what they're trying to cover, namely analyzing an unreassembled packet on a packet-by-packet basis. [00:20:34] Speaker 04: That never happens. [00:20:37] Speaker 04: In the real world, when the packets are received, in this case by Sonic Waller, who [00:20:44] Speaker 04: They're received in a non-executable at that moment form. [00:20:50] Speaker 04: I think we all agree to that. [00:20:52] Speaker 04: So why isn't Ms. [00:20:54] Speaker 04: Brooks right that if you construe, if you apply the construction the way that you're applying it, this would not really read on anything? [00:21:04] Speaker 05: Your honor, my answer is it's actually the part of that question you sort of jumped over a little bit. [00:21:08] Speaker 05: It's almost, what exactly is her point? [00:21:11] Speaker 05: The construction is the construction. [00:21:13] Speaker 05: Perhaps her argument would need to be that the word receiving [00:21:18] Speaker 05: could mean something different in some other case. [00:21:20] Speaker 05: That would be a different claim construction argument, so that maybe receiving doesn't require that it's executable at that moment. [00:21:27] Speaker 05: As long as the inspector itself or the receiver itself can then do something and then forward on to another buffer within the same device. [00:21:36] Speaker 04: But again, to get back to the simple problem is when the receipt occurs by the device, [00:21:46] Speaker 04: then at that point, it is not executable unless you read executable with the mean that it potentially can be executed when it's reconfigured. [00:21:58] Speaker 05: We agree completely, Your Honor, but there is nothing ambiguous. [00:22:01] Speaker 05: I'm sorry. [00:22:02] Speaker 04: But then, if that's true, since every device receives these things in a non-executable form, then the patent reads on nothing. [00:22:11] Speaker 05: Your Honor, if that is the necessary conclusion, then that would be the MyMail [00:22:16] Speaker 05: takeaway, which is that would be stipulated. [00:22:18] Speaker 04: That would lead one to think that maybe that isn't the right way to view the issue and what constitutes [00:22:26] Speaker 05: receipt. [00:22:28] Speaker 05: Well, and your honor, that last part in terms of what constitutes receipt is a claim construction argument that perhaps they could have made at the district court. [00:22:36] Speaker 05: And in another case where that matters, they probably would. [00:22:40] Speaker 05: In other words, in another case where the firewall actually reassembled packets or the gateway reassembled packets, then the meaning of receipt would probably be really important. [00:22:50] Speaker 05: And that's the argument they could make. [00:22:52] Speaker 05: In our case, it just doesn't matter because whatever receipt means, [00:22:56] Speaker 05: we never have possession of an executable. [00:22:58] Speaker 05: It never happens. [00:22:59] Speaker 05: And so that's where I'm saying, what we know for sure is that their stipulation ended the possibility of infringement in this case. [00:23:08] Speaker 05: Then they didn't ask for subsidiary claim instructions. [00:23:11] Speaker 05: In a case in which they wanted to accuse a device that reassembled the packets and formed an executable on [00:23:22] Speaker 05: that on the inspector or the gateway, perhaps they could argue that receive doesn't mean executable upon arrival. [00:23:29] Speaker 05: It could mean executable a few moments later. [00:23:32] Speaker 05: But that's about the meaning of receive, which is not the basis. [00:23:36] Speaker 05: Here, our point is, whatever receive means. [00:23:39] Speaker 05: There is no conceivable definition you give to receive that we would satisfy, because there is never an executable on the inspector, on the gateway. [00:23:51] Speaker 05: Your Honor, I will... Let me see if there are other issues. [00:24:04] Speaker 04: I can't find it right now. [00:24:06] Speaker 04: Where is the claim construction? [00:24:09] Speaker 05: Your Honor, the claim construction is at Appendix 39, Your Honor. [00:24:15] Speaker 05: Thank you. [00:24:19] Speaker 05: Yes. [00:24:21] Speaker 05: I apologize. [00:24:25] Speaker 05: There was another thought I wanted to share, but I wanted to make it beautiful. [00:24:27] Speaker 05: Go ahead. [00:24:29] Speaker 05: The other piece of this puzzle, Your Honor, is in this case, they did more than just stipulate to the claim construction. [00:24:36] Speaker 05: They stipulated to the claim construction. [00:24:38] Speaker 05: They then told the court, we don't want any more claim constructions. [00:24:41] Speaker 05: We want you to decide this on the evidence. [00:24:44] Speaker 05: So then the evidence question is, all right, what is an executable application? [00:24:48] Speaker 05: The only evidence in this record is from their expert who says it's a piece of code that can actually execute. [00:24:55] Speaker 05: As a matter of fact, not as a matter of claim construction, as a matter of fact, that piece, and the district court repeatedly cites it, we're no longer talking about claim construction. [00:25:04] Speaker 05: We're talking about evidence and products. [00:25:07] Speaker 05: Now, there's no reason to believe that same record would necessarily occur in some other case. [00:25:11] Speaker 05: I don't know what the other evidence would be, but what was so unique here [00:25:16] Speaker 05: is there was a stipulated construction an insistence that there was to be no more constructions and and it would only decide decided on evidence by fengen and the judge repeatedly saying show me the evidence where is the evidence and the only evidence is a piece of code that can actually execute is what an executable is perhaps again to this point i asked uh... yes uh... council brooks for the fengen have presented any evidence that knifey packet that's received at sonic stonewall gateways could be executed [00:25:46] Speaker 00: What's your answer to that question? [00:25:48] Speaker 05: Absolutely not. [00:25:51] Speaker 05: There is no evidence that an IP packet that arrives at a Sonic Bowl gateway could be executed. [00:26:01] Speaker 03: Following up on what Judge Bryson and Judge Wren have been asking you, is there a way for a hypothetical defendant to infringe the claims, including the terminology, downloadable? [00:26:14] Speaker 05: There are two ways that would happen, neither of which happened in this case. [00:26:18] Speaker 05: Number one is Finjen creates a question of fact on, rather than conceding that there are no more claim constructions and having the only bit of evidence as to what an executable is being a piece of code that can actually execute, they have an expert say something else. [00:26:34] Speaker 05: That's one possibility, just simply a different evidentiary record. [00:26:39] Speaker 05: Possibility, in other words, that was a key link of this finding that doesn't necessarily appear in the next case. [00:26:44] Speaker 05: Possibility number two is they have a claim construction. [00:26:48] Speaker 05: They ask for a claim construction of the term receiving. [00:26:52] Speaker 05: And the point in our case is no matter what receiving means, we can't possibly satisfy it because we are never at any point in possession, even of all the packets, much less of something that's a down... Yeah, I'm sorry, Your Honor. [00:27:04] Speaker 03: No, no, that's okay. [00:27:05] Speaker 03: So what would the expert need to opine? [00:27:08] Speaker 03: So let's assume this is the construction. [00:27:11] Speaker 03: You can go get a new claim construction. [00:27:14] Speaker 03: This is the construction. [00:27:16] Speaker 03: What would the expert need to opine in your opinion so that this claim could be infringed by a hypothetical defendant? [00:27:23] Speaker 03: Because you're saying a different expert opinion. [00:27:27] Speaker 05: And to be clear about my premises, [00:27:30] Speaker 05: What the expert said was an important part of this linkage. [00:27:34] Speaker 05: On this record, that got us to this conclusion. [00:27:37] Speaker 05: I imagine the expert could take some sort of a position that executable doesn't mean a piece of code that can actually execute. [00:27:50] Speaker 05: Instead, it means, and again, this is not in the record, it could mean packets that, when assembled, could be executable. [00:28:00] Speaker 05: Theoretically, an expert could say something like that. [00:28:04] Speaker 05: My point is, that's simply a question of evidence. [00:28:06] Speaker 05: I'm now literally making up evidence of what somebody might be able to say, but that wasn't the evidence in this case. [00:28:12] Speaker 05: But the term executable was never construed as such. [00:28:15] Speaker 05: Correct. [00:28:17] Speaker 05: And Sonicwell, I'm sorry, Fingen deliberately said there are to be no more constructions. [00:28:21] Speaker 04: This is just a question. [00:28:22] Speaker 04: Yeah. [00:28:23] Speaker 04: This is, we see this a lot and particularly in district courts where we are faced with a construction of a construction. [00:28:31] Speaker 04: And we have a construction here in which it now becomes quite evident to me at least that one of the terms in the construction is the term that really needs to be attended to. [00:28:42] Speaker 05: Your honor, I agree with that, but this is what you probably don't see nearly as often. [00:28:47] Speaker 05: The judge Freeman quoted this in her order. [00:28:51] Speaker 05: Not only did no one ask for a construction of the construction, Fingen affirmatively disavowed it and said, you should do no more constructions. [00:28:59] Speaker 04: This is only a question of ethics. [00:29:01] Speaker 04: That is often the case that each side has its own view in which it is entirely confident. [00:29:07] Speaker 04: as to what that term really means. [00:29:10] Speaker 04: And it doesn't become evident until after claim construction that they don't have the same view. [00:29:15] Speaker 05: But this was during the summary judgment motions, though. [00:29:19] Speaker 05: And even with O2 micro, once you disavow a construction, then it does just become a question of the evidence. [00:29:25] Speaker 05: That's what they said, that basically we should let the facts determine what it means to be executable. [00:29:31] Speaker 03: And the only- Did both experts agree on what executable meant? [00:29:35] Speaker 03: Was that agreed by the experts? [00:29:37] Speaker 05: I know for sure no one disagreed with what Dr. Cole said. [00:29:43] Speaker 05: Dr. Cole was Finjen's expert. [00:29:45] Speaker 05: That's the expert that the court keeps quoting. [00:29:49] Speaker 05: Experts agreed it's a piece of code that can actually execute, run, or perform a function on a system. [00:29:55] Speaker 04: Not very helpful for purposes of our current dispute, it seems. [00:29:59] Speaker 05: Well, Your Honor, it is only in this sense. [00:30:02] Speaker 05: We know for sure that there is never [00:30:06] Speaker 05: I mean, unlike all the embodiments, there is never a file on the SonicWall devices that can actually execute, run, or perform a function on a system. [00:30:20] Speaker 00: Is that because, not because of the nature or the makeup of the file, but because of the way that SonicWall's gateways operate? [00:30:28] Speaker 05: Correct. [00:30:29] Speaker 05: That's correct. [00:30:30] Speaker 05: Because SonicWall, unlike others, SonicWall doesn't take those packets and [00:30:36] Speaker 05: take the payload out of them and reassemble it into an executable file and then scan the executable file for potential malware. [00:30:44] Speaker 05: That's how the rest of it. [00:30:45] Speaker 00: Your response to Judge Cunningham a while ago when she asked you if executable could mean may be executed or something like that, and you said yes. [00:30:56] Speaker 00: So even though your gateways may not operate differently and they don't execute packets upon the receipt, still those packets could be executable. [00:31:06] Speaker 05: No, Your Honor. [00:31:07] Speaker 05: The evidence in the record is that they could not. [00:31:10] Speaker 05: At that moment, you say. [00:31:13] Speaker 05: Ever. [00:31:14] Speaker 05: Ever on the docks. [00:31:15] Speaker 05: Until they're reassembled. [00:31:16] Speaker 05: The device never reassembles them. [00:31:18] Speaker 04: I know the device doesn't, but they can be reassembled. [00:31:20] Speaker 04: They're subject to being reassembled, at which point they're readily executable. [00:31:24] Speaker 05: They're actually not, Your Honor, because the device never even has all of the packets at the same time. [00:31:28] Speaker 04: Never mind the device. [00:31:29] Speaker 04: The ultimate destination computer can do all the reassembling, and that produces a file that's executable. [00:31:35] Speaker 04: I think we all agree with that. [00:31:36] Speaker 05: We do agree with that, Your Honor. [00:31:38] Speaker 05: But again, both the claim and what they said in the 494 [00:31:43] Speaker 05: patented plenary response to an IPR is that the downloadable, which is defined as the executable, the thing that can actually execute, has to be on the intermediary device, the inspector or the receiver. [00:31:55] Speaker 03: It sounded like when you've been answering some of these other questions, you do think that the downloadable claims could be infringed under certain circumstances, just not circumstances here. [00:32:05] Speaker 05: That's correct, Your Honor. [00:32:06] Speaker 05: Okay. [00:32:08] Speaker 05: I'm not saying that they are uninfringible. [00:32:10] Speaker 05: That's correct. [00:32:11] Speaker 03: Under the agreed construction by the party. [00:32:13] Speaker 05: That's right. [00:32:14] Speaker 05: And that was one of the first things we said in the district court is the rest of the industry actually reassembles a file at the gateway, turns it into an executable, and either actually executes it or scans it to see if there is malware in there. [00:32:29] Speaker 05: We are unique in that rather than doing that, we literally just look at individual packets for very specific byte sequences, particular series of ones and zeros, [00:32:40] Speaker 05: and either pass them along or don't pass them along, but we don't look at anything in relationship to a packet that came before or a packet that came after. [00:32:49] Speaker 05: It's a less expensive way of doing it. [00:32:50] Speaker 05: We've had a lot of success with that, but it's different. [00:32:54] Speaker 05: And that's why, and then that was part of Judge Freeman's understanding of all this, is this is not an argument, it's coincidentally, I'd been in front of Judge Freeman defending a different client. [00:33:08] Speaker 05: in a different fencing case on the same patent. [00:33:10] Speaker 05: And I said, we didn't make this argument in that case, because in that case, like the rest of the industry, the company actually reassembled the files at the gateway and inspected them. [00:33:22] Speaker 05: And so they were absolutely in possession of an executable. [00:33:26] Speaker 05: But when you literally just look at one packet and send it on, it's sort of like the analogy in the puzzle analogy, [00:33:34] Speaker 05: Judge Freeman's analogy was not that you don't have a puzzle, but you don't have a picture. [00:33:39] Speaker 05: You've got the pieces of a picture, but it would be like sending a bunch of jigsaw puzzles at the same time, a bunch of pieces completely intermingled through a device, looking at one, moving it on, looking at one, moving it on. [00:33:56] Speaker 05: you never have a picture at that device. [00:34:00] Speaker 05: That was her analogy. [00:34:01] Speaker 00: Can you turn to the other issues that were brought up? [00:34:04] Speaker 05: Yes, your honor. [00:34:05] Speaker 05: With respect to the 408 patent, Baldwin addressed a different question. [00:34:14] Speaker 05: Baldwin's question was, in a situation in which there was a pre-soaked fabric roll, [00:34:23] Speaker 05: We have multiple pre-soaked fabric rolls which each satisfy every one of the limitations. [00:34:29] Speaker 05: Is that still an infringement? [00:34:31] Speaker 05: And the answer was absolutely. [00:34:32] Speaker 05: That's not at all our question here. [00:34:34] Speaker 05: Our question is, what if you've got a computer or multiple computers that do not each satisfy all the limitations? [00:34:42] Speaker 05: That question was answered very directly by Enrey Varma, which is the analogy of for a dog owner to have a dog that rolls over and fetches a stick, [00:34:52] Speaker 05: It does not suffice that you have two dogs, each able to perform just one of the tasks. [00:34:58] Speaker 03: Can you distinguish Symantec? [00:35:00] Speaker 05: The Symantec case, Your Honor, the plain term was computer system. [00:35:06] Speaker 05: It was not a computer. [00:35:08] Speaker 05: It was a computer system. [00:35:10] Speaker 05: And the district court looked at the specification and said, in all the embodiments in the specification, this computer system [00:35:17] Speaker 05: is only a single computer, the Federal Circuit said, no, you're reading an embodiment from the specification into the claims. [00:35:25] Speaker 05: The word system, by its very nature, includes more than just a single computer. [00:35:29] Speaker 05: And so it can be literally a computer system encompasses multiple computers, each of which can just do, as long as that computer system collectively satisfies everything, you've literally satisfied the claim. [00:35:45] Speaker 05: Finally, on the damages issues, [00:35:48] Speaker 05: Bearing in mind the standard of review, which is abuse of discretion, and the question, did Judge Freeman identify the correct legal rule, and then were her findings illogical and plausible or without support in the inferences from the facts and the record, I actually want to very briefly go to exactly the pages [00:36:12] Speaker 05: that Miss Brooks was referring to. [00:36:16] Speaker 05: The first is Appendix 14142. [00:36:26] Speaker 05: This is 14142. [00:36:30] Speaker 05: This is the Sonic Wall marketing document that the expert used [00:36:37] Speaker 05: to break up, in this case, the gateways into what he referred to as 12 top-level functions. [00:36:44] Speaker 05: And this is the first page. [00:36:46] Speaker 05: 14142 is the first page. [00:36:47] Speaker 05: And this was the one that we focused on at the Daubert hearing. [00:36:50] Speaker 05: And so RF DPI engine was one of the 12 functions. [00:36:54] Speaker 05: That's just what's right there at the top of that page. [00:36:57] Speaker 05: And then there were five sub-functions with long explanations. [00:37:01] Speaker 05: So that's the description. [00:37:03] Speaker 05: Now, if we now turn [00:37:06] Speaker 05: to the mapping, which I believe Ms. [00:37:07] Speaker 05: Brooks said was the most important part of Dr. Striegel's analysis. [00:37:13] Speaker 05: That's at 14964. [00:37:15] Speaker 05: The first single-spaced paragraph refers to the RF DPI engine, and it's taken straight from this document, the document we just looked at at 14142. [00:37:32] Speaker 05: The entirety of the analysis, everything, everything we get about why Dr. Striegel wants to take all of the value from RFDPI with all of those sub-functions into the royalty base is the second sentence here. [00:37:47] Speaker 05: For the 844, 494, and 926, the RFDPI engine overlaps at least by receiving the downloadable, period. [00:37:57] Speaker 05: That's it. [00:37:58] Speaker 05: That's the sum total of the analysis. [00:38:01] Speaker 05: What Judge Freeman found was, first of all, overlaps isn't even the right question. [00:38:06] Speaker 05: The question under Erickson and the apportionment case law isn't just, if you imagine concentric circles, is there some little overlap? [00:38:15] Speaker 05: It's between the claims and the accused product. [00:38:18] Speaker 05: Are there also a bunch of non-infringing features in the accused product with which you don't overlap, which you don't cover? [00:38:26] Speaker 05: So overlaps isn't the right question, but in this case, [00:38:30] Speaker 04: Dr. Striegel needs to be congruent, not simply in Venn diagram form having some area of overlap. [00:38:39] Speaker 05: That's precisely correct, Your Honor. [00:38:40] Speaker 05: And there's no dispute that he did not apportion down to the five elements that are referenced here. [00:38:47] Speaker 05: They admitted that to the district court. [00:38:49] Speaker 05: He admitted it in his deposition. [00:38:51] Speaker 05: That's everything I have, unless there are further questions. [00:38:53] Speaker 05: Thank you, Judge. [00:38:54] Speaker 05: Thank you very much. [00:38:57] Speaker 00: Professor Brooks, we're almost out of time. [00:39:00] Speaker 01: Thank you very much, Your Honor. [00:39:02] Speaker 01: Let's start again then with the 494 and 780 and 844. [00:39:09] Speaker 01: Again, what Councilpersonic Wall just argued was that the rest of the industry reassembles the packet at the gateway. [00:39:19] Speaker 01: Well, the way the claim reads, that's still too late. [00:39:23] Speaker 01: The packets have to be reassembled before getting to the gateway, according to Sonic Wall and according to the court, because it says a receiver for receiving an incoming downloadable. [00:39:37] Speaker 01: So this reassembly is simply a red herring that is not what the court decided. [00:39:42] Speaker 01: Here's what the court decided. [00:39:44] Speaker 01: Appendix 13098 is the oral argument [00:39:49] Speaker 01: Summary judgment. [00:39:51] Speaker 01: And the court says that line 23, it seems to me that the patent says, when it's received, it has to be executable. [00:40:01] Speaker 01: Not at some point in the future. [00:40:03] Speaker 01: It has to be capable of being executable. [00:40:07] Speaker 01: So this is exactly the discussion we just had today, where apparently we lost that. [00:40:12] Speaker 01: That capable being executed in the district court's mind was not enough. [00:40:17] Speaker 01: And then Mr. Murkaji, on behalf of Finjin, [00:40:20] Speaker 01: was arguing, but Your Honor, may I say this? [00:40:24] Speaker 01: The question becomes, what is an executable application? [00:40:28] Speaker 01: It's executable, not executed. [00:40:31] Speaker 01: And it was the court that said, OK, we are not going to have new claim constructions. [00:40:36] Speaker 01: This is on the next page, 13099, at line 10 and 11. [00:40:41] Speaker 01: OK, we are not going to have new claim construction because this argument is not going your way. [00:40:46] Speaker 01: I'm not going to construe my construction. [00:40:49] Speaker 01: which is why we're here today, because had the court determined that executable could simply be exactly what we're saying, which is a typophile capable of being executed, which is the entire gist of this invention, then we wouldn't have a construction where nobody infringes. [00:41:11] Speaker 01: It's all read out. [00:41:12] Speaker 01: And Judge Cunningham, I know you asked several times for examples of where it would be infringing. [00:41:18] Speaker 01: The only answer I heard back was this reassembly. [00:41:21] Speaker 01: But the reassembly takes place after the receiver receives what is supposed to be the executable. [00:41:28] Speaker 01: And so therefore that, according again to the court, is not sufficient. [00:41:32] Speaker 01: So that's all I would say on this question. [00:41:34] Speaker 01: Other questions on that issue. [00:41:36] Speaker 01: Turning now to the A computer, Your Honor asked for counsel to distinguish semantics. [00:41:42] Speaker 01: And what counsel said was that Symantec dealt with a computer system and not a computer. [00:41:48] Speaker 01: And that was the distinguishing. [00:41:50] Speaker 01: With all due respect, Symantec actually dealt with both. [00:41:54] Speaker 01: The court found in its opinion right before Section C, because we find the terms computer, [00:42:02] Speaker 01: and computer system are not limited to a single computer, we must vacate and remand to the district court on the issue of infringement of CA's gateway product." [00:42:14] Speaker 01: So it dealt with both, the computer and the computer system. [00:42:17] Speaker 01: Oh, and I'm sorry, there was one other thing I wanted to say quickly on the executable. [00:42:22] Speaker 01: All Dr. Cole said [00:42:23] Speaker 01: was appendix 10398. [00:42:27] Speaker 01: Okay, what's your understanding of an executable application program? [00:42:32] Speaker 01: Answer, that is a program that can execute or run on a computer. [00:42:37] Speaker 01: And there's no dispute that these packets, before they're transmitted, are an executable. [00:42:43] Speaker 01: They're transmitted in packets because that's how the internet does it, and they will get executed on the destination computer. [00:42:52] Speaker 01: And so Dr. Cole's testimony does nothing to take away from that. [00:42:57] Speaker 01: And lastly, I would just refer on the issue of damages. [00:43:01] Speaker 01: When I talked about the mapping, what I was talking about was the mapping that Dr. Striegel did in his Appendix D at Appendix 14974 is where it starts. [00:43:13] Speaker 01: And it's very specific. [00:43:15] Speaker 01: This is the product. [00:43:18] Speaker 01: These are the specific claims. [00:43:20] Speaker 01: And while he did use the term overlap, which is unfortunate in that section of his report, when he begins the analysis, he uses a different term. [00:43:31] Speaker 01: At appendix 14961, he says, [00:43:34] Speaker 01: From the top level functions identified earlier, I have analyzed the products and the infringement of those products and determined which top level functions are attributable to the asserted claims of the asserted patents. [00:43:48] Speaker 04: But he never actually got down to the lower level functions. [00:43:53] Speaker 04: He did. [00:43:53] Speaker 04: He disclaimed analyzing those, if I recall. [00:43:56] Speaker 01: Actually, what he said at his deposition, and we cited in our brief, Your Honor, when asked about, well, what about these sub-functions? [00:44:02] Speaker 01: He said, I did consider them, but I didn't use them for my analysis, because some of them are, I think he gave an analogy of a car. [00:44:12] Speaker 01: Some people may want leather, and some people may want cloth upholstery. [00:44:16] Speaker 01: That's not what's important. [00:44:17] Speaker 04: They didn't make their way into his analysis, into his apportionment. [00:44:22] Speaker 01: That's correct. [00:44:23] Speaker 01: He specifically rejected using them because he said some of those were more important than others, so he stuck with the top-level functions. [00:44:31] Speaker 01: Thank you very much, Your Honors. [00:44:32] Speaker 00: Thank you. [00:44:34] Speaker 00: We thank the parties for their arguments, take the case under advisement.