[00:00:00] Speaker 03: Our next case this morning is number 24, 1935, NRA Estec Systems, IP LLC. [00:00:08] Speaker 02: Mr. Whitten-Selmer. [00:00:10] Speaker 02: Thank you, Your Honor. [00:00:10] Speaker 02: May it please the Court? [00:00:13] Speaker 02: A 684 patent pertains to throttling data to improve the quality of voice-over IP telephone calls, throttling delays or deprioritizes non-voice data to prioritize voice data. [00:00:27] Speaker 02: Claims of a 684 patent [00:00:29] Speaker 02: Accomplish this through two means. [00:00:31] Speaker 02: First, a specific throttling algorithm, and second, a specific structure or inter-arrangement between components. [00:00:39] Speaker 02: The examiner board relied on the Bustini reference for the algorithms and the Chu reference for the structure. [00:00:46] Speaker 02: The board erred with respect to the disclosure of the throttling algorithms. [00:00:55] Speaker 02: Claim 29 requires throttling data [00:00:57] Speaker 02: sent from the workstation to the telephone, and monitoring audio information received by the telephone from the multimedia server. [00:01:11] Speaker 02: So we have three components, the workstation, telephone in between, then a multimedia server. [00:01:18] Speaker 02: Data, as claimed, flows from the workstation through the telephone. [00:01:24] Speaker 02: Audio information flows in the opposite direction. [00:01:27] Speaker 02: Audio information from the multimedia server to the telephone. [00:01:34] Speaker 00: So what is missing in the combined references? [00:01:38] Speaker 02: In the combined references, we believe both the throttling algorithms are not addressing the correct data in the correct directions. [00:01:47] Speaker 02: And also the structure is not disclosed. [00:01:50] Speaker 02: Right now I'm addressing the algorithms specifically in Bustini. [00:01:55] Speaker 02: And so in Bustini, figure seven, which is appendix 959, discloses the algorithm. [00:02:08] Speaker 02: Data flows from node A on the left through to node C on the right. [00:02:13] Speaker 02: And this is, in the language of Bustini, bursty data, which corresponds to the claimed data in 6A4 pattern. [00:02:22] Speaker 02: All the data is always flowing left to right. [00:02:25] Speaker 02: And along the bottom of the diagram, there's a feedback from the third node back to the first node, node A. And that is where bursty data is throttled. [00:02:38] Speaker 02: And that feedback is generated in node B, and it is based on the amount of bursty data received and congestion. [00:02:47] Speaker 00: OK, I'm sorry. [00:02:48] Speaker 00: It's on me, and I'm a little confused, because there are different limitations that have been challenged. [00:02:55] Speaker 00: first issue that's been raised, what limitation are you referring to now? [00:03:01] Speaker 02: My apologies, Your Honor. [00:03:02] Speaker 02: I am on the, using claim 29, I'm on the final limitation which is sufficiently throttling data. [00:03:09] Speaker 02: So we are talking about the algorithm and the board and the examiner relied on Bustini [00:03:15] Speaker 03: And what's your argument as to why Bustini doesn't disclose this? [00:03:19] Speaker 03: So Bustini, when we look at Figure 7, and again, that's appendix. [00:03:23] Speaker 03: No, but tell me what is it, what's the claim limitation? [00:03:26] Speaker 03: What's the claim line? [00:03:29] Speaker 02: Your Honor, the claim limitation is sufficiently throttling the data and specifically [00:03:36] Speaker 02: monitoring an amount of the audio information being received by the telephone from the multimedia. [00:03:41] Speaker 03: Is the monitoring, you say it requires monitoring of the audio information and Bustini doesn't do that? [00:03:48] Speaker 03: Correct, correct your honor. [00:03:51] Speaker 03: Correct. [00:03:52] Speaker 02: So in Bustini, as mapped by the examiner. [00:03:56] Speaker 03: In Bustini they're monitoring, they're throttling based on monitoring of the cube, right? [00:04:01] Speaker 02: They are throttling based on the [00:04:04] Speaker 02: they are monitoring the bursty data, which corresponds to the claimed data. [00:04:08] Speaker 03: They're monitoring both, aren't they? [00:04:09] Speaker 03: Both the audio and the bursty data. [00:04:11] Speaker 03: They're monitoring the length of the cue. [00:04:14] Speaker 03: No, Your Honor. [00:04:15] Speaker 03: They're different cues. [00:04:16] Speaker 02: And the, in Bustini... I know they're different cues. [00:04:19] Speaker 02: Because it discusses bursty data versus other cues. [00:04:22] Speaker 02: I believe there are six cues disclosed in Bustini. [00:04:25] Speaker 02: And in addition, when Bustini's algorithm is mapped to the... Bustini shows [00:04:34] Speaker 03: monitoring only the bursty data queue? [00:04:40] Speaker 02: In Bustini, each queue is monitored. [00:04:43] Speaker 02: But in Bustini, each piece of information or each data type, which corresponds to different queues, is flowing left to right. [00:04:53] Speaker 02: So this is the workstation telephone outside. [00:04:57] Speaker 02: The claims are calling for audio information coming into the telephone from a multimedia server. [00:05:04] Speaker 02: which would be going in the opposite. [00:05:05] Speaker 03: They're doing the monitoring in the wrong place? [00:05:07] Speaker 03: Is that the idea? [00:05:09] Speaker 02: It's the wrong direction, first, because the audio information is claimed is coming from a multimedia server, not the workstation, which is how the board of the examiner read it. [00:05:21] Speaker 02: Second, the audio information, to the extent it is being received, [00:05:29] Speaker 02: is not being used to throttle the bursty data because Bustini is making those decisions based on the queue for individual types of data, not taking the amount of data in one queue and using that to throttle a different queue. [00:05:45] Speaker 00: And the board's response was the claims don't require throttling be based on monitoring, right? [00:05:52] Speaker 02: I believe that's my counterpart's argument. [00:05:55] Speaker 02: I may have missed it in the decision, but my understanding was that the board did not contest it. [00:06:00] Speaker 02: My counterpart raised it in briefing. [00:06:02] Speaker 02: And there was a discussion, I believe, of Claim 14 and some claim differentiation. [00:06:07] Speaker 02: Yes. [00:06:09] Speaker 02: We disagree with that argument, Your Honor, for several reasons. [00:06:14] Speaker 02: Claim 14 is a separate independent claim. [00:06:17] Speaker 00: I thought it said dependent. [00:06:19] Speaker 02: Claim 14 is an independent claim. [00:06:24] Speaker 02: And claim 14 differs markedly from claim 29, which is actually an issue. [00:06:30] Speaker 02: In claim 14, for example, there are multiple network devices, which separates it from claim 29. [00:06:38] Speaker 02: And there's also discussion or requirement of performing throttling actions in response to the data falling below a predetermined threshold. [00:06:50] Speaker 02: Now, that is not recited in Claim 29, which is actually an issue. [00:06:55] Speaker 02: In fact, that limitation comes in, for example, in a separate independent. [00:06:59] Speaker 02: I'm sorry. [00:07:00] Speaker 02: I am not following your argument. [00:07:03] Speaker 03: So the claim says sufficiently throttling based on monitoring of the audio data, right? [00:07:12] Speaker 03: Correct. [00:07:14] Speaker 03: And you say Bustini does not disclose this because what? [00:07:18] Speaker 02: because Bustini never throttles bursty data, which is what was mapped to the claim data, does not throttle that based on monitoring audio information, which is in a separate queue. [00:07:34] Speaker 02: Bustini's throttling is one-to-one with respect to the queue. [00:07:36] Speaker 02: So if we have bursty data, it throttles bursty data based on parameters about bursty data. [00:07:43] Speaker 02: If we're in another queue. [00:07:44] Speaker 03: You're saying it's not throttling bursty data based on audio data. [00:07:49] Speaker 02: Correct, Your Honor. [00:07:51] Speaker 02: As is required. [00:07:52] Speaker 02: Did the board address that question? [00:07:54] Speaker 02: I do not believe they did, Your Honor. [00:07:57] Speaker 02: That position was not, again, reading through the opinion. [00:08:02] Speaker 02: I did not see that addressed by the board specifically. [00:08:05] Speaker 03: Did you raise that issue with the board? [00:08:07] Speaker 02: Yes, Your Honor. [00:08:08] Speaker 03: Where? [00:08:14] Speaker 02: I may have to find that for you for my rebuttal, Your Honor. [00:08:18] Speaker 00: Well, the board's analysis here, am I in the right place? [00:08:21] Speaker 00: Appendix 17 through 21. [00:08:25] Speaker 02: So the board, correct your honor, the board does address, discusses the algorithms. [00:08:49] Speaker 02: There's a discussion on relying on different algorithms. [00:08:55] Speaker 02: There's also discussion of our motivation to combine argument. [00:09:01] Speaker 02: But there's no, as far as I can see, no express discussion of the argument that throttling has to be performed based on the audio information. [00:09:16] Speaker 03: Well, it talks about it. [00:09:18] Speaker 03: 19 is DDT just monitoring traffic cues, which would include received voice or audio transmissions to indicate network congestion. [00:09:31] Speaker 03: That seems to suggest that they were monitoring both the audio and the bursty cues, right? [00:09:39] Speaker 02: I agree that each one is monitored as a distinct component or cue, but the issue is that the claim calls for [00:09:47] Speaker 02: using information from the monitoring of one cue to throttle a different cue, which is not disclosed in Bustini. [00:09:56] Speaker 02: And that's really the crux. [00:09:57] Speaker 03: What this finding seems to suggest is that they were monitoring audio data as part of the overall monitoring and using that to determine throttling of Busti data. [00:10:09] Speaker 03: And you're saying that that's a misconstruction of Bustini? [00:10:13] Speaker 02: Correct, Your Honor. [00:10:13] Speaker 03: They are separate cues. [00:10:15] Speaker 03: There are separate cues that are regulated. [00:10:18] Speaker 03: Where does Bustini say there are separate cues? [00:10:45] Speaker 03: Did you have an expert to address this? [00:10:49] Speaker 02: No, Your Honor. [00:10:49] Speaker 02: The disclosure on Bustini, despite being somewhat complicated reference, is pretty straightforward on the queuing. [00:10:59] Speaker 00: And is the argument you're making today the one that the board refers to on 16 and 17? [00:11:11] Speaker 00: Sorry, Your Honor, I didn't... Look at the Board of Opinions 16 and 17 where it lists patent owners' contention. [00:11:25] Speaker 00: Appendix 16 and 17. [00:11:27] Speaker 00: Is that the argument you're making here today? [00:11:47] Speaker 02: Yes, about how the algorithms function. [00:11:49] Speaker 02: I'm sorry? [00:11:50] Speaker 02: Yes, we are. [00:11:51] Speaker 00: OK, so the board did address it. [00:11:53] Speaker 00: The board addressed that argument in the pages that follow, correct? [00:11:56] Speaker 02: I think the board addressed incorrectly had reached factual findings with respect to how the bestini algorithms operate. [00:12:06] Speaker 00: Can you refer more specifically, because I'm just a bit lost here, and the board's analysis at set appendix 17 through 21, where the error was in the board's analysis? [00:12:24] Speaker 02: I think it's twofold. [00:12:25] Speaker 02: One, there's a disregard for the direction of data. [00:12:29] Speaker 02: And then again, there's a general, [00:12:34] Speaker 02: finding that audio information is monitored, and that's not contested by us. [00:12:39] Speaker 03: The issue is... What you're saying is that Bastini shows a monitoring of audio information, but that that's not used to throttle bursty data, correct? [00:12:50] Speaker 03: Correct. [00:12:51] Speaker 03: And so we're, and you say the board made a mistake in thinking that the throttling of the bursty data was [00:13:03] Speaker 03: based in part on the audio data, which is what the board found. [00:13:08] Speaker 03: So show me where, in Bustini, it shows that there's no use of the audio data, throttle, or bursty data. [00:13:20] Speaker 02: My apologies, Your Honor. [00:13:21] Speaker 02: I was actually finding it and then jumped back for just the first question. [00:13:23] Speaker 02: I think we're talking about the same thing. [00:13:26] Speaker 02: If I may take my rebuttal time and find that citation. [00:13:30] Speaker 02: No, no, no, no. [00:13:32] Speaker ?: Now. [00:13:42] Speaker 03: If it's so clear you're having trouble finding it, that seems odd. [00:14:27] Speaker 03: Well, you can't answer the question. [00:14:29] Speaker 03: I'm going to assume that you don't have any support for it. [00:14:31] Speaker 03: If you find it on rebuttal, you can do that. [00:14:34] Speaker 03: Thank you, Your Honor. [00:14:48] Speaker 01: May it please the court. [00:14:50] Speaker 01: I think I can resolve this issue by looking [00:14:57] Speaker 01: the abstract of Bustini on appendix page 954, it says congestion control is accomplished by controlling the transmission rate of bursty traffic in the presence of high priority voice, low speed statistical, high speed deterministic, multicast data. [00:15:16] Speaker 01: So it's saying that the throttling of the bursty traffic occurs in the presence of these other types [00:15:24] Speaker 01: of data, including voice data. [00:15:26] Speaker 01: So if it knows that there's voice data there, then it follows that voice data is monitored and the IRCE traffic is throttled based on that. [00:15:41] Speaker 01: In addition, if you look at appendix page 970, column 1 at the bottom, [00:15:53] Speaker 01: It says that during periods of network traffic congestion, when network traffic. [00:15:58] Speaker 01: Sorry, what line are you on? [00:15:58] Speaker 01: Oh, I'm sorry. [00:16:00] Speaker 01: I'm on line 64 in column one. [00:16:04] Speaker 01: It says during periods of network traffic congestion, when network traffic demand exceeds the network's bandwidth capacity, servicing algorithms are typically employed to discriminate between traffic classes in order to allocate bandwidth. [00:16:20] Speaker 01: And so if it's measuring [00:16:22] Speaker 01: the overall network traffic congestion, which voice data is part of it, then it's using that measurement or that monitoring to then throttle bursty data. [00:16:41] Speaker 01: So I, you know, I made the argument in my brief that claim 29 doesn't even, [00:16:50] Speaker 01: to the monitoring, but even if it does, Bustini discloses this and that's what the board relied on. [00:17:03] Speaker 01: I guess I would just like to touch on this argument that, you know, the throttling [00:17:13] Speaker 01: in Bustini is not going in the right direction as compared to the claims. [00:17:18] Speaker 01: I think that misapprehends the obviousness inquiry here. [00:17:23] Speaker 01: The examiner and the board relied on CHU's network setup, so like the physical connection of the devices, which matches the claim limitation, and then relied on the concept of throttling bursty data in the presence of voice data [00:17:43] Speaker 01: from Bustini. [00:17:44] Speaker 01: So it's not that the examiner had to show that you could use the exact methods, the exact pathways that Bustini used in Chu. [00:17:59] Speaker 01: It's the teachings of Bustini, the teachings or the acknowledgement that voice data is not tolerant to delay. [00:18:08] Speaker 01: And in a voice over IP network, [00:18:11] Speaker 01: It makes sense to slow down other types of traffic that are that aren't delay sensitive to allow that voice traffic to pass through. [00:18:20] Speaker 01: And that's what the steamy teachers and that's what the 684 pattern is directed to. [00:18:24] Speaker 01: There are no further questions. [00:18:30] Speaker 01: OK, thank you. [00:18:38] Speaker 03: Mr. Whitten-Zellner, I'll give you two minutes here. [00:18:53] Speaker 02: Thank you, Your Honor. [00:18:54] Speaker 02: Going back to the question regarding monitoring, my counterpart pointed to column one. [00:19:03] Speaker 02: This is, recall there are two algorithms that the board and the examiner relied on. [00:19:07] Speaker 02: This is the so-called background algorithm. [00:19:10] Speaker 02: And the portion cited does not say anything about monitoring audio information to control bursty data. [00:19:17] Speaker 02: It talks generally about congestion. [00:19:18] Speaker 03: You said that the reference shows that they weren't controlling or throttling the bursty data based on the audio data. [00:19:27] Speaker 03: And you still have no answer as to where [00:19:30] Speaker 03: Bustini shows that. [00:19:32] Speaker 02: There's no disclosure, Your Honor, in the background algorithm of using audio information monitoring of that, too. [00:19:39] Speaker 02: But it seems to say that it's using it. [00:19:42] Speaker 02: It just says general network congestion. [00:19:46] Speaker 02: We're not monitoring, and it's actually telling us there are six different... General network congestion includes audio data. [00:19:52] Speaker 02: But it says that there are six different types of cues of data that can cause this network congestion. [00:20:00] Speaker 02: Nowhere is it saying we are going to monitor audio information, one of these six cues, to control bursty data, another one of these six cues. [00:20:12] Speaker 02: And then the other algorithm is the so-called ICA algorithm, which is discussed in column 11, which is appendix 0975. [00:20:24] Speaker 02: And that discussion pertains solely to bursty data. [00:20:29] Speaker 02: without discussion of monitoring audio information or throttling it. [00:20:38] Speaker 02: So there's no disclosure, again, of using monitoring audio information to throttle a different type of data. [00:20:46] Speaker 02: And as to my counterpart's argument about obviousness, there was no argument about changing these algorithms and the direction in which they work to essentially drop them into the structure of CHU. [00:20:59] Speaker 02: Okay. [00:20:59] Speaker 02: Thank you. [00:21:00] Speaker 02: I think we're out of time. [00:21:01] Speaker 02: Thank you, your honor. [00:21:02] Speaker 03: I think both council cases submitted.