[00:00:00] Speaker 01:
Our final case this morning is number 24, 1624, Apple versus Smart Mobile Technologies, LLC.

[00:00:11] Speaker 01:
Okay, Ms.

[00:00:12] Speaker 01:
Oliver.

[00:00:13] Speaker 03:
Good morning and may it please the court.

[00:00:16] Speaker 03:
Angela Oliver on behalf of Apple.

[00:00:19] Speaker 03:
This case is about a box drawing exercise.

[00:00:21] Speaker 03:
We've briefed the issues in terms of claim construction and in terms of a challenge to the substantial evidence.

[00:00:26] Speaker 03:
But at bottom, the question here is simply whether a multi-step process in the prior art discloses two of the claim elements.

[00:00:33] Speaker 03:
And here it does.

[00:00:35] Speaker 03:
The prior art discloses multiple steps or functions within its overarching process.

[00:00:41] Speaker 03:
And two of those functions disclose the claim elements here.

[00:00:44] Speaker 03:
The board went astray by buying into Smart Mobile's argument that there is no way to break the prior art's overarching process into more discrete, distinct steps.

[00:00:54] Speaker 00:
Well, isn't that the way you presented the case in the petition?

[00:00:58] Speaker 00:
When we read your petition, when we read Dr. Jensen's declaration, paragraph 123, when we read your reply, it seems to have made it pretty clear to the board that the way you designed your unpatentability theory, it was to set out to prove that

[00:01:20] Speaker 00:
The GGSN has logically distinct functions inside of it with respect to the server and the network switch box function.

[00:01:31] Speaker 03:
Your Honor, we did say in our petition that it has distinct functions.

[00:01:35] Speaker 03:
That was talking about the prior art, not the challenged claim language.

[00:01:38] Speaker 03:
So we were not conceding as a matter of claim construction that this was required by the claims.

[00:01:42] Speaker 03:
Our point was simply to argue that a skilled artisan would have looked at the prior art and seen two identifiable functions occurring there.

[00:01:50] Speaker 00:
I guess what I'm trying to figure out is if you, in fact, made a case about attacking this claim through your

[00:02:00] Speaker 00:
explanations about the prior art through your petition and reply, all premised on the idea that the prior art reference discloses logically distinct functions, then I'm not sure we can fault the board for saying, no, you did not prove that Ajo-Pelto has logically distinct functions.

[00:02:23] Speaker 03:
Sure.

[00:02:23] Speaker 03:
Well, we tried to make this clear and before the board during the hearing by saying, again, we're just looking for two functions that exist, whether or not they are distinct in the terms of the board ultimately used in the final written decision.

[00:02:36] Speaker 03:
And I think that's an important point, even though we use the term distinct in our petition and then in our reply.

[00:02:42] Speaker 03:
We never expected the kind of rigid analysis of that that the board ended up taking in the... What about your experts declaration that was submitted with the petition?

[00:02:51] Speaker 04:
It's paragraph 123 that was cited in the petition.

[00:02:55] Speaker 04:
And the expert specifically says, you know, that this functionality would be implemented as different logical per end, e.g.

[00:03:05] Speaker 04:
software and per end entities on a shared platform.

[00:03:09] Speaker 04:
that takes the meaning of logically distinct or whatever it is we're talking about, you know, distinct, right, to a different level than what you're talking about, right?

[00:03:21] Speaker 03:
So I think that paragraph certainly is useful to support the idea that sure, when you implement this, you would implement it in different functions when you're implementing the software.

[00:03:33] Speaker 04:
So if that is what the expert said and then the board didn't agree,

[00:03:39] Speaker 04:
that it hadn't been shown by a preponderance of evidence that these different functions were implemented in different software modules because there's nothing in the reference that talks about that, then why isn't that a problem?

[00:03:55] Speaker 03:
Well, Your Honor, and maybe let me take a step back.

[00:03:57] Speaker 03:
In this paragraph in 123, there is nothing here that says,

[00:04:02] Speaker 03:
Specifically, it would be disclosed in, or it would be implemented in a certain format in the software.

[00:04:08] Speaker 03:
It just says different logical software entities.

[00:04:11] Speaker 03:
There's nothing in the patent here that talks about how this would be implemented.

[00:04:15] Speaker 03:
And so there was nothing for our experts to try to compare that to.

[00:04:17] Speaker 00:
This is just kind of a basic… But we're talking about the premise of your theory of why Ajo-Pelto maps onto the claim.

[00:04:26] Speaker 00:
It's pretty clear again in the reply at A315.

[00:04:32] Speaker 00:
You're really trying to spotlight it.

[00:04:35] Speaker 00:
Quote, thus whether Ajo-Pelto's GGSN server functionality and router functionality have distinct hardware is irrelevant.

[00:04:43] Speaker 00:
Instead, the question is whether Oposita would have found the claimed server and claimed network switch box obvious from Ajo-Pelto's logically distinct GGSN function teachings.

[00:04:56] Speaker 00:
And that's entirely consistent with other statements in your petition about the routing functionality in addition to and distinct from the server functionality.

[00:05:06] Speaker 00:
And the GGSN routing functionality would be implemented as a logical entity.

[00:05:11] Speaker 00:
And then with the Jensen Paragraph 123 declaration.

[00:05:16] Speaker 00:
So it was up to you how you wanted to present your case.

[00:05:21] Speaker 00:
And this is the way you presented your case about

[00:05:25] Speaker 00:
AHOPELTO necessarily teaching logically distinct functions, I don't see anywhere in either your petition or your reply saying, well, you can sort of mix and match these two functions as long as they're ultimately somehow being performed by AHOPELTO's GGSN.

[00:05:44] Speaker 00:
That is good enough.

[00:05:45] Speaker 00:
I don't see anything like that.

[00:05:47] Speaker 00:
I see everything devoted to the idea of proving that the functions are logically distinct in AHOPELTO's GGSN.

[00:05:55] Speaker 03:
You are correct that we use the word distinct, logically distinct, repeatedly in our petition and then our reply.

[00:06:01] Speaker 03:
But I think looking at this in hindsight, now having seen the board's decision, what we meant there was not what the board ultimately did in its decision.

[00:06:09] Speaker 03:
We were simply trying to...

[00:06:12] Speaker 03:
What we meant was not as a matter of claim construction.

[00:06:15] Speaker 03:
We were addressing the prior art, and we were simply saying there's two functions that a skilled artisan would understand to be there.

[00:06:21] Speaker 03:
This was clear at the hearing.

[00:06:22] Speaker 03:
So in Appendix 404, one of the administrative patent judges said, to us, all you're saying is one of ordinary skill in the art, reading eopelto, would see two different functionalities.

[00:06:32] Speaker 03:
Is that correct?

[00:06:33] Speaker 03:
And our counsel said, yes, that is correct.

[00:06:35] Speaker 03:
So that was the point.

[00:06:37] Speaker 00:
But then he says, you know, the whole idea is separateness there.

[00:06:42] Speaker 00:
You know, and then the board is confused because it doesn't really see two separate sets of description in Ahopelto.

[00:06:50] Speaker 00:
And in fact, when we look at Ahopelto, all your references to things in Ahopelto about the server function are embedded inside the discussions of Ahopelto's routing function.

[00:07:05] Speaker 00:
And so I can understand why the board would be confused and see that

[00:07:10] Speaker 00:
Well, maybe there isn't really any distinctness between the server and routing functions if what you're trying to point at in Aopelto for a server function is inside Aopelto's description of the routing function.

[00:07:25] Speaker 03:
It's a step of the overarching process of routing.

[00:07:28] Speaker 00:
Of the routing function.

[00:07:29] Speaker 00:
And so if you're going to try to prove that they are somehow logically distinct,

[00:07:37] Speaker 00:
when they look so interrelated, at least for purposes of Ajo-Pelto's disclosure, it makes it much harder to make your case that they are somehow logically distinct.

[00:07:48] Speaker 03:
I think this brings me to my next point that even let's assume we're in a world where we needed to show that these were distinct.

[00:07:53] Speaker 03:
I think that begs the question of what does distinct mean in the context of a software process flow like we're relying on here.

[00:08:00] Speaker 03:
And so the proper question I think in that context should have just been very different than the physical mechanical arts context.

[00:08:06] Speaker 03:
The proper question should have been whether a skilled artisan would have looked at that overarching routing process, seen the process flow, and understood that there were multiple steps or multiple functions happening within that flow.

[00:08:17] Speaker 03:
That's different than what the board did in its analysis.

[00:08:20] Speaker 03:
The board looked at whether the prior art calls them distinct.

[00:08:23] Speaker 03:
It looked at whether the prior art has some sort of overlap between those functions.

[00:08:27] Speaker 03:
But that's not how that test should apply in the context of a software process flow.

[00:08:32] Speaker 03:
I think a good analogy here is the bot mate case that we cited during the oral hearing, and in that case that also involved a separate and distinct type question.

[00:08:42] Speaker 03:
In the prior art there also had a sequential process flow at issue, and this court held in a non

[00:08:48] Speaker 03:
presidential decision that the fact that there were multiple steps in the process flow, that was enough to show that there were distinct components.

[00:08:57] Speaker 03:
And so that is what, if we're going to analyze these as whether they are distinct elements, then that should have been the analysis that the board should have performed here, similar to the bot mate.

[00:09:07] Speaker 00:
It's called bot mate, not bot M8.

[00:09:09] Speaker 03:
Maybe it's bot M8.

[00:09:11] Speaker 03:
During the argument, it was referred to as bot mate.

[00:09:14] Speaker 04:
Can I ask you, what do you think the board understood logically distinct to mean in its opinion?

[00:09:23] Speaker 03:
I think it is not clear what the board understood that to mean here.

[00:09:26] Speaker 00:
What did you mean when you said logically distinct?

[00:09:29] Speaker 00:
What did Dr. Jensen mean when he said logically distinct?

[00:09:32] Speaker 03:
These are two steps.

[00:09:33] Speaker 03:
These are two functions in the overarching process that AAPELTO describes.

[00:09:38] Speaker 04:
Is it possible that Dr. Jensen thought that it meant it has to be different software functions?

[00:09:43] Speaker 03:
He certainly testified that that it could be implemented as different entities in software But again, that's that's not part of the claims that's not described in the specification So there was no need to go into detail about that.

[00:09:56] Speaker 04:
What matters is the it's hard for me reviewing it I if I don't understand what it means if that's going to be the legal test

[00:10:03] Speaker 04:
in a situation like this, I just want to know what the parties meant and what the board meant.

[00:10:09] Speaker 04:
So what is your thought on what Apple meant, at least, with respect to that term?

[00:10:14] Speaker 03:
Yes, Apple just meant that there are two functions in this process flow in the prior art that a skilled artisan would have understood.

[00:10:20] Speaker 04:
So one had to do... In other words, if there's a flow chart and there's step 100 that relates to serving, even if it doesn't use the word serving, that's enough if the step of routing is in a separate box.

[00:10:33] Speaker 04:
Is that not line drawing and box drawing, as you said this case is about before?

[00:10:37] Speaker 03:
So I think this is box drawing.

[00:10:39] Speaker 03:
So I think if the prior art here had been presented in terms of a flow chart, where we talked about one box that said protocol management, we check the protocol, we see if it's supported and then we encapsulate, that's the server functionality referred to, if that had been in one box,

[00:10:52] Speaker 03:
And then the flow chart then said, okay, after you've checked the protocol, send it on using the ports to the rest of the network for distribution, the routing function that we identified.

[00:11:00] Speaker 03:
I think this would have been a very different case.

[00:11:02] Speaker 03:
There's claims that seem to separate the steps that way in that prior patent.

[00:11:06] Speaker 03:
Well, and that is similar to in BotMate where the claims separated the claims into two different programs.

[00:11:12] Speaker 03:
There was a fault management program.

[00:11:13] Speaker 03:
a fault inspection program and a boot program, two separate claim elements in that case, but yet this court still held that in response to an argument that one program could not show both of those claimed programs, this court still held that the different steps in that process could show each of those claimed elements.

[00:11:31] Speaker 00:
was reaching a conclusion that two different claim elements, there didn't necessarily have to be distinctness between those two claim elements given that they were both software and for other reasons as well.

[00:11:47] Speaker 00:
Here we're not asking ourselves whether or not the network switchbox function has to be distinct from the server function because that's the playing field

[00:12:00] Speaker 00:
that's been defined in the petition, assuming that's the case, then we are already operating under a rule of the case that we're looking for distinctness.

[00:12:15] Speaker 00:
And then the problem becomes, if you and your expert are citing some of the same passages in AHOPELTO to map onto the server function as well as the network switchbox function,

[00:12:27] Speaker 00:
you can understand why a fact finder would get confused as to trying to find a way to say that, huh, there is some separate distinctness between these two functions in the help belt though.

[00:12:40] Speaker 03:
Well, Your Honor, going back to bot mate, I think there is one sentence in here that's critically important for this.

[00:12:45] Speaker 03:
So when the board reaches the, excuse me, when this court reaches the end of its analysis about this process flow,

[00:12:52] Speaker 03:
The court says we disagree that Becton, a prior precedent regarding physical separateness, we disagree that Becton requires that the fault inspection program and boot program must be performed by distinct programs to be distinct components of the patented invention.

[00:13:06] Speaker 03:
So I think even in botmate, the court was still analyzing this in terms of even if we look at these as distinct components, this process flow was sufficient.

[00:13:15] Speaker 04:
Are you still challenging the claim construction?

[00:13:17] Speaker 03:
Yes, Your Honor, we argued that we never conceded that issue, and if the court agrees with us on that, then yes, we would say that this does not require separate and distinct elements.

[00:13:29] Speaker 04:
Why wouldn't it be invited error for all the reasons we've talked about with respect to the language used in your petition and in your reply?

[00:13:38] Speaker 03:
Your Honor, I...

[00:13:39] Speaker 03:
I think if the court determines that we did concede this issue, then that resolves that question.

[00:13:43] Speaker 03:
And we are operating in a land of whether we did show that these are distinct.

[00:13:47] Speaker 03:
And then the question is just, what does distinct mean in this unique software context where we have a process flow like this with multiple steps?

[00:13:54] Speaker 03:
And I think Bot made it helpful in that regard to show that.

[00:13:56] Speaker 04:
Is it correct that what you're saying is we're supposed to look at what distinct means with respect to the law?

[00:14:02] Speaker 04:
Or is it that we look to what distinct means with respect to what the parties agreed to, because this is agreed to claim construction?

[00:14:09] Speaker 03:
We never agreed to the... Assuming that we think you agreed.

[00:14:14] Speaker 03:
I'm sorry, just to clarify.

[00:14:15] Speaker 03:
Assuming that the court thinks that we agreed with the idea of separate and distinct generally.

[00:14:20] Speaker 03:
The board did not say that we agreed that that means that a multi-step process cannot show two claim elements that are distinct.

[00:14:28] Speaker 03:
We still have that position.

[00:14:30] Speaker 03:
We're simply saying that even if we're in a land of distinction, showing multiple steps in a process, multiple functions being performed, that is distinction.

[00:14:38] Speaker 03:
I see that I'm in my rebuttal time, so unless the court has... We'll give you two minutes.

[00:14:42] Speaker 01:
Thank you.

[00:14:43] Speaker 01:
Mr. Shaw.

[00:15:14] Speaker 02:
Good morning, Your Honors.

[00:15:15] Speaker 02:
May it please the court, Greer Shaw for Smart Mobile Technologies.

[00:15:20] Speaker 02:
Your Honors, this is not a case where the board went off on its own tangent.

[00:15:25] Speaker 02:
This is a case where the board understood Apple's unpatentability theory and found that Apple did not prove its case.

[00:15:32] Speaker 02:
Simple as that.

[00:15:33] Speaker 02:
As Judge Chen pointed out, Apple's the master of its own petition.

[00:15:38] Speaker 02:
Apple set up the issue as, does Ajo-Pelto teach

[00:15:43] Speaker 02:
Separate logical elements in addition to and distinct from one another.

[00:15:47] Speaker 02:
Does it teach logically distinct function teachings?

[00:15:51] Speaker 02:
Those were Apple's own words.

[00:15:53] Speaker 02:
From its petition, those are the words that the board cited specifically and said, Apple agrees that that's what must be shown in the prior art.

[00:16:02] Speaker 02:
The board then looked at the prior art and found that Apple had not proven its case.

[00:16:07] Speaker 02:
We heard some commentary that perhaps Apple retreated from this at the trial.

[00:16:11] Speaker 02:
And I think that's not the case either, as we discussed in our brief.

[00:16:15] Speaker 02:
And these, again, are Apple's own words from the trial.

[00:16:19] Speaker 02:
The issue there was whether Apple held to a taught different functions and distinct components.

[00:16:25] Speaker 02:
This is Appendix 403.

[00:16:28] Speaker 02:
Separate and distinct server and network switch box.

[00:16:31] Speaker 02:
This is Appendix 407.

[00:16:33] Speaker 02:
Individual different and discrete logical functions.

[00:16:36] Speaker 02:
This is Appendix 438.

[00:16:39] Speaker 02:
distinct and separate functions.

[00:16:40] Speaker 02:
This is Appendix 439.

[00:16:42] Speaker 02:
These are the words from Apple's own lawyer, again addressing the issue of whether A. H. O. Pelto taught these two functions as separate and distinct logical elements.

[00:16:51] Speaker 04:
You're taking the position here at argument that what I'm hearing and what I heard read in the briefs is that when they mean

[00:16:58] Speaker 04:
separate and distinct.

[00:17:00] Speaker 04:
They just mean that the functions are identified as two separate things that are happening.

[00:17:04] Speaker 04:
And that that has been satisfied here.

[00:17:09] Speaker 04:
What is your response to that?

[00:17:10] Speaker 04:
And particularly, I mean, and what is your specific view on what logically distinct?

[00:17:16] Speaker 02:
Well, Your Honor, logically distinct was the words of Apple's expert.

[00:17:21] Speaker 02:
He said, logically distinct entities, I believe, is the word.

[00:17:25] Speaker 02:
Different logical entities was his phrase of paragraph 123.

[00:17:29] Speaker 02:
And we hear Apple's lawyer saying, well, we don't know what distinct means.

[00:17:32] Speaker 02:
Well, this was Apple's own word.

[00:17:34] Speaker 02:
Yeah, but what did he mean by that?

[00:17:36] Speaker 02:
I don't know.

[00:17:36] Speaker 02:
And it's not up to us to say.

[00:17:38] Speaker 04:
Well, the thing is, you've got an APA problem if I can't understand what the board said.

[00:17:42] Speaker 04:
And so what do you think it means?

[00:17:45] Speaker 02:
The board is accepting Apple's own phrasing.

[00:17:48] Speaker 04:
I think what- They have to do the analysis, so they must have a meaning for, they must understand what it means.

[00:17:53] Speaker 02:
Well, I think what they were looking for was,

[00:17:55] Speaker 02:
that the alleged server teaching and the alleged network switch box teaching were two different logical entities.

[00:18:04] Speaker 02:
And in the expert's words, that would probably be either separate hardware, which there's no dispute, AyoPelto does not teach that, or distinct and discrete, let's say, software programs, again, which AyoPelto does not teach.

[00:18:19] Speaker 02:
I think that's what they were looking for, was some kind of distinction.

[00:18:21] Speaker 04:
What about separate software calls or functions?

[00:18:25] Speaker 02:
Perhaps if there was evidence of that, but there wasn't.

[00:18:28] Speaker 02:
Their expert didn't point out anything like that in Ejio Pelto.

[00:18:31] Speaker 02:
Ejio Pelto doesn't say.

[00:18:31] Speaker 02:
In fact, their expert admitted Ejio Pelto doesn't teach anything about the software.

[00:18:37] Speaker 02:
This is at paragraph 78 of Dr. Jensen's declaration.

[00:18:41] Speaker 04:
Hypothetically, what if they had evidence that it was necessarily so?

[00:18:45] Speaker 02:
I'm sorry, Your Honor.

[00:18:46] Speaker 04:
What if they, hypothetically, what if in a case a party had evidence that it was necessarily so that there would be separate function calls for this to operate more?

[00:18:57] Speaker 02:
If the facts were different, then the outcome may have been different.

[00:19:00] Speaker 02:
If they were teaching in IHOPELTO that what Apple was pointing to is allegedly two separate things, if they were teaching in that case, or the patent rather, IHOPELTO patent, that those two functions were performed either by separate hardware,

[00:19:15] Speaker 02:
or some discrete separate software, then this would be a different case.

[00:19:20] Speaker 02:
But there is no allegation that Ejo-Pelto discloses two things separately and distinctly that way.

[00:19:27] Speaker 02:
And again, their own expert admitted that Ejo-Pelto doesn't teach anything about the software.

[00:19:31] Speaker 02:
And this is paragraph 78.

[00:19:34] Speaker 02:
And so what the expert did was attempt to bootstrap by pointing to these other references, the Granbaum and Stallings references.

[00:19:40] Speaker 02:
But then he admitted the deposition he didn't cite to teach anything about it.

[00:19:45] Speaker 02:
So he has no support for his opinion at paragraph 123 that there's different logical entities.

[00:19:53] Speaker 02:
It's just hand waving.

[00:19:54] Speaker 02:
He doesn't cite anything that supports that that's how Ajo-Pelter actually did things.

[00:19:59] Speaker 02:
He disclaimed a deposition that Stallings taught anything about a GGSN.

[00:20:03] Speaker 02:
He said he wasn't citing Stallings to say anything about a GGSN.

[00:20:07] Speaker 02:
He doesn't say what different logical entities means.

[00:20:09] Speaker 02:
He never defines that.

[00:20:11] Speaker 02:
And by the way, I'd point out, Your Honor,

[00:20:14] Speaker 02:
Dr. Jensen, Apple never submitted a second declaration from Dr. Jensen.

[00:20:18] Speaker 02:
So if these issues of what does distinct mean or what does different logical entities means, if that was some question that they wanted an answer to, they had an opportunity to answer the question, the second declaration.

[00:20:28] Speaker 01:
If we have two different functions here, you'd have to have two different software approaches to that, right?

[00:20:39] Speaker 02:
I'm not sure that they're two separate functions.

[00:20:41] Speaker 01:
It's all, as Judge Chen pointed out.

[00:20:44] Speaker 01:
I understand that qualification, but if there were two separate functions, it would have to be different software, right?

[00:20:50] Speaker 01:
Possibly.

[00:20:52] Speaker 02:
Possibly.

[00:20:52] Speaker 02:
I mean, Ajo-Pelto says what it says, Your Honor.

[00:20:55] Speaker 02:
It's not clear to me, it wasn't clear to the board, that Ajo-Pelto teaches these as separate functions.

[00:21:01] Speaker 02:
It's all under the heading routing, right?

[00:21:03] Speaker 02:
Ajo-Pelto calls this routing, and routing has

[00:21:06] Speaker 01:
So your main answer to my question is that really the premise that there are two separate functions here is wrong.

[00:21:14] Speaker 02:
I think Apple failed to prove that these are two separate and discrete functions.

[00:21:19] Speaker 02:
Yes.

[00:21:20] Speaker 02:
I think the board found them.

[00:21:21] Speaker 02:
And it was Apple's burden to prove that as they pitched it in their petition.

[00:21:26] Speaker 04:
Can I ask you to look at claim eight of AHO PELTO?

[00:21:33] Speaker 04:
It's on page 8, 836.

[00:21:36] Speaker 02:
I'm sorry, on which page?

[00:21:37] Speaker 02:
It's on page 836.

[00:21:37] Speaker 02:
836?

[00:21:38] Speaker 02:
836.

[00:21:39] Speaker 04:
I just want to make sure I'm understanding the technology right.

[00:21:51] Speaker 04:
So around lines, let's say 50 to 59, it talks about stripping by the gateway support node.

[00:22:01] Speaker 04:
It said first packet radio network, encapsulation away,

[00:22:05] Speaker 04:
according to the internet protocol, the first packet, all of that language there, does that, that's something that I see as being, whether a server would do.

[00:22:15] Speaker 02:
I'm sorry, you're on error at 836, which is the, which is the claims of the HOPELTA.

[00:22:19] Speaker 04:
That's correct.

[00:22:20] Speaker 04:
I asked you if I could walk through a claim with you.

[00:22:22] Speaker 02:
Okay.

[00:22:24] Speaker 02:
Okay.

[00:22:26] Speaker 04:
Do you read the language of stripping the encapsulation according to a first protocol and then encapsulating according to a second protocol?

[00:22:39] Speaker 04:
Would that be serving?

[00:22:42] Speaker 02:
That's not what Apple pointed to as the server.

[00:22:44] Speaker 04:
I understand.

[00:22:44] Speaker 04:
I'm asking you so I understand the technology.

[00:22:47] Speaker 02:
I don't know.

[00:22:47] Speaker 02:
That was not an issue that was raised before the P5.

[00:22:51] Speaker 04:
What is serving then?

[00:22:53] Speaker 04:
What is serving?

[00:22:55] Speaker 02:
I'm right here to offer an opinion on what serving means.

[00:22:58] Speaker 02:
Claim construction of the word serving was not an issue below.

[00:23:01] Speaker 04:
But I have to understand whether ApoHelto teaches serving.

[00:23:06] Speaker 02:
Apple needed to prove its case that ApoHelto taught serving.

[00:23:09] Speaker 04:
I know, I'm trying to determine that.

[00:23:11] Speaker 04:
Could you help me out by telling me what serving means?

[00:23:16] Speaker 02:
Again, server was not a claim construction issue below.

[00:23:20] Speaker 00:
The server function that they

[00:23:23] Speaker 00:
Their theory was determining the protocol type, right?

[00:23:29] Speaker 00:
Right.

[00:23:29] Speaker 00:
And then they cited to several things in Aopelto where Aopelto is determining the protocol type.

[00:23:39] Speaker 00:
And each of those passages is inside a discussion about a routing function.

[00:23:47] Speaker 02:
Right.

[00:23:49] Speaker 02:
What they pointed to, what Apple pointed to for the alleged server functionality

[00:23:53] Speaker 02:
was there's short sections in Ejio Appelto that talk about the GGSN checking the protocol of a packet.

[00:24:03] Speaker 02:
And that's what they said about checking a protocol.

[00:24:06] Speaker 02:
So that's how they defined it, their server functionality.

[00:24:11] Speaker 02:
And they said server, the claim term server, should be given its plain, ordinary meaning.

[00:24:15] Speaker 02:
There was no claim construction dispute.

[00:24:19] Speaker 02:
Apple portrayed the issue as

[00:24:22] Speaker 02:
The server and the network switch box need to be functionally distinct entities, components.

[00:24:29] Speaker 02:
And we agreed with that.

[00:24:29] Speaker 02:
We agreed with that premise, that they need to be functionally distinct.

[00:24:32] Speaker 02:
And so beyond that, there was no claim construction.

[00:24:36] Speaker 04:
Do you think that functionally distinct could be satisfied by having elements set forth and a claim separately?

[00:24:49] Speaker 02:
Possibly, sure, but they didn't point to the claims.

[00:24:52] Speaker 02:
Apple did not point to the claims as in support of their arguments, claims of Ajo-Pelto.

[00:24:58] Speaker 02:
The board was looking at the specific portions of Ajo-Pelto that Apple pointed to as the alleged server functionality, and the board had no obligation to come up with arguments that Apple itself didn't make.

[00:25:10] Speaker 02:
This court's precedent is clear on that.

[00:25:12] Speaker 02:
So whatever Apple thought server meant, server functionality meant, they specified.

[00:25:18] Speaker 02:
in Ajo-Pelto and that's what the board looked at and the board specifically addressed each of their assertions about what Ajo-Pelto taught.

[00:25:27] Speaker 02:
The burden was not on the board to then sift through Ajo-Pelto and see if there was some other argument that Apple could have come up with but failed to do.

[00:25:39] Speaker 02:
With respect to the issue of whether the board

[00:25:45] Speaker 02:
should have construed the claims or improperly construed the claims.

[00:25:51] Speaker 02:
If there was a claim construction dispute, Apple forfeited it by failing to raise it.

[00:25:57] Speaker 02:
They made the case in their petition that these elements needed to be separate and distinct components.

[00:26:02] Speaker 02:
We agreed with that.

[00:26:03] Speaker 02:
In our reply brief to the patent owner's response, we explained why Apple failed to prove its case.

[00:26:09] Speaker 02:
At that point, if Apple felt that

[00:26:13] Speaker 02:
Claim construction should be such that these two features could be taught by the same functionality in the prior art.

[00:26:18] Speaker 02:
That was the time to raise that argument, and Apple did not do so.

[00:26:22] Speaker 02:
In our view, the claim construction issue has been waived.

[00:26:28] Speaker 02:
We heard some discussion about botmate.

[00:26:30] Speaker 02:
We addressed that in detail at pages 18 through 20 of our brief.

[00:26:36] Speaker 02:
Unless there are any further questions, I'll conclude my argument.

[00:26:40] Speaker 01:
Okay.

[00:26:41] Speaker 01:
Thank you.

[00:26:41] Speaker 02:
Thank you, your honor.

[00:26:42] Speaker 01:
Ms.

[00:26:42] Speaker 01:
Oliver.

[00:26:44] Speaker 01:
Two minutes.

[00:26:55] Speaker 03:
Thank you, Your Honors.

[00:26:56] Speaker 03:
Judge Stoll, I'd like to begin with your question regarding what does server mean.

[00:26:59] Speaker 03:
All we know is what we have in the claim language and what Smart Mobile has indicated in page 29 of its red brief.

[00:27:05] Speaker 03:
They said the server has controlling functions.

[00:27:07] Speaker 03:
That matches the claim language.

[00:27:09] Speaker 03:
It has a controller.

[00:27:10] Speaker 03:
And so that's what we map to here.

[00:27:12] Speaker 03:
The server functionality.

[00:27:13] Speaker 03:
which is doing this protocol management that is controlling how the packets are sent throughout the rest of the distribution network.

[00:27:20] Speaker 03:
There's no further details on server than that.

[00:27:22] Speaker 04:
It doesn't have a function in it, right, for server.

[00:27:25] Speaker 04:
It has a function for the routing but not for serving.

[00:27:28] Speaker 04:
That's what you're saying, right?

[00:27:29] Speaker 04:
I'm sorry, can you repeat the question?

[00:27:31] Speaker 04:
I understood you to be saying that the claim doesn't have a function for server.

[00:27:36] Speaker 04:
Am I correct?

[00:27:37] Speaker 03:
Yes, other than simply controlling something.

[00:27:40] Speaker 00:
Your petition always presumed that there is a server function and the server function is determining the protocol type.

[00:27:49] Speaker 00:
That's right.

[00:27:50] Speaker 00:
So that's what you went to go looking for in Ajo-Pelto.

[00:27:54] Speaker 03:
That's right.

[00:27:54] Speaker 03:
It is controlling something.

[00:27:56] Speaker 03:
Here we mapped it to controlling the packets, how they're distributed based on the protocol.

[00:28:00] Speaker 03:
And there was no dispute before the board that that would constitute a server.

[00:28:03] Speaker 03:
The only dispute was this idea of separate and distinct.

[00:28:06] Speaker 03:
So that there has been a server shown here.

[00:28:10] Speaker 03:
Now, I'd like to also quickly address Claim 8 of AAPELTO that your Honor raised on Appendix 836.

[00:28:15] Speaker 03:
I think this does show, helps show that these are distinct elements.

[00:28:20] Speaker 03:
This is similar to, is he correct that Apple didn't identify this to the board?

[00:28:25] Speaker 03:
We did not cite Claim 8, but we cited Column 10,

[00:28:30] Speaker 03:
22 through 27, which have the same set of steps flowing through in order.

[00:28:35] Speaker 03:
So checking the packet, checking the protocol, finding out it does not support the protocol, encapsulating the packet in a new type of packet, and then sending it on further through the distribution network.

[00:28:46] Speaker 03:
That's the same set of steps that you see in claim eight.

[00:28:49] Speaker 03:
So we did cite that process flow.

[00:28:53] Speaker 03:
Unless there are any other questions, we would ask the court to vacate and remand.

[00:28:57] Speaker 01:
Thank you.

[00:28:58] Speaker 01:
Thank you both for the cases.