[00:00:00] Speaker 00:
Our next case is Keysight Technologies versus Centripetal Networks, 2025-1053. Mr. Dietrichs again.

[00:00:10] Speaker 03:
Good morning, Your Honors. May it please the Court, Jonathan Dietrichs for Keysight Technologies. This appeal concerns whether the Board was obligated to address arguments raised by the petition against claim elements of certain dependent claims that were presented in the petition's analysis of the same claim elements of the independent claims, albeit without expressly referencing the dependent claim numbers beyond their identification in the global header of the ground, when the petition's arguments against the dependent claims, one, were expressly credited in the Board's institution decision and found to be sufficiently presented.

[00:00:47] Speaker 03:
Two, were not challenged either procedurally or substantively by the patent owner in its response. And three, were at the oral hearing the Board asked for and received clarification from counsel on where in the petition those arguments had been made. The answer is yes.

[00:01:05] Speaker 01:
Well, counsel, do you agree that the petition did not contain any explicit arguments about about those dependent claims 6, 14?

[00:01:13] Speaker 03:
No, Your Honor. 2, 30, or 33? No, Your Honor, I don't. I can go directly into, you know, it didn't reference the claim numbers, but everything else was there.

[00:01:29] Speaker 01:
A specific JA citation where you're indicating that there are explicit arguments raised in the petition about those five claims. dependent claims.

[00:01:39] Speaker 03:
Yes, Your Honor. I'll go into that.

[00:01:41] Speaker 01:
And just generally let me finish the question and then you answer just so we keep the record clean, okay? Okay. Thanks, Your Honor.

[00:01:49] Speaker 01:
You can answer now, though.

[00:01:50] Speaker 03:
Keysight's petition contained more than enough substance to infer to signal or to invoke the applicability of the petition's arguments regarding claim elements in the independent claims to those very same claim elements in the dependent claims.

[00:02:05] Speaker 03:
There are five claims at issue in this appeal across two groups.

[00:02:07] Speaker 01:
Okay. I'm waiting for the JA page, though. Just get to that.

[00:02:11] Speaker 03:
So Appendix 2099 through 301, that addresses the packet security gateway element at issue in Claim 6.

[00:02:20] Speaker 04:
How about the land switch element or limitation of Claim 6? Where do you expressly address that?

[00:02:29] Speaker 03:
Yes. So, again, that's Appendix 299 through 301. There, in a single paragraph, Keysight explained that laws Firewalls 146A and 146B each correspond to the claimed packet security gateways, citing laws paragraphs 22, 54, and 55, and expressly noted that lost firewalls are located at the perimeter of LAN 150, and further noted that the devices on the LAN include, quote, standard network devices supporting any communications protocol, end quote.

[00:03:03] Speaker 00:
But you're discussing subject matter, and you said a few moments ago that the claim numbers weren't expressly stated. Well, claim numbers, that's the name of the game.

[00:03:14] Speaker 03:
Yes, Your Honor.

[00:03:15] Speaker 00:
This is an the business of precision. You have to specify what claims you're dealing with, and you didn't.

[00:03:24] Speaker 03:
Well, we did. To be clear, the ground one analysis stated that it included, or that it was applying the combination of law and Gulnabi to render obvious claims 6 and 33. That's Appendix 283 and 291. So there's no question that the petition identified claims 6 and 33 as included in the ground one analysis. The question is, where is it?

[00:03:49] Speaker 00:
And so that's... But not subsequently argued in.

[00:03:54] Speaker 00:
It was argued.

[00:03:56] Speaker 00:
As specific claims?

[00:03:59] Speaker 03:
Well, it wasn't argued with respect to the claim numbers, but as we see, for example, in this court... The board questioned your counsel and said, we don't see it. Yes.

[00:04:15] Speaker 03:
And to be clear, you know, let's stick with the packet security gateway comprising a land switch.

[00:04:25] Speaker 03:
What I just explained is more than enough to signal the applicability of that argument to the claim six limitation of packet security gateway comprises a land switch. First, given that the petition's ground one analysis did not include a separate subheading for the packet security gateway element of claim six, the only logical location to consider Is the paragraph in ground one analyzing loss disclosure of the packet security gateway element?

[00:04:54] Speaker 04:
How is it an abuse of discretion for the board to essentially conclude that signaling the applicability of an argument that's expressly a claim one and never repeated with respect to claim six? How is it an abuse of discretion for the board to say, we don't see it for claim six? If you wanted it to be for claim six, just tell us, but you didn't tell us. Well, we did tell... the Board, Your Honor, at the oral hearing.

[00:05:20] Speaker 04:
You don't tell them in the petition. We did. You tell them that the petition claim six is at issue, but you don't tell them our argument for the land switch limitation for claim six is the same one as claim one. You don't tell them that, and they have a rule that says... you basically have to be very clear about what you're doing.

[00:05:42] Speaker 04:
And we review that implementation of the rule for abuse of discretion, don't we?

[00:05:48] Speaker 03:
Yes, Your Honor.

[00:05:49] Speaker 04:
So how is it an abuse of discretion, what they did?

[00:05:51] Speaker 03:
Well, let me talk about this court's decision in...

[00:06:01] Speaker 03:
which found a petition adequate despite the lack of an explicit reference in the relevant discussion of the prior art to either a particular claim number or the claim limitation itself.

[00:06:13] Speaker 03:
And specifically, this court found that the petition's assertion that a specified portion of the prior art showed longer than wide implants was sufficient to raise an argument that the specified portion of the prior art disclosed the claim limitation at issue, which was the only claim limitation in the patent addressing a comparison of length to width. We have exactly the same type of signaling here.

[00:06:39] Speaker 03:
where despite the lack of the claim number in the relevant discussion or the exact words of the claim language, there was nonetheless more than enough to signal the applicability of the disclosure to the dependent claim elements.

[00:06:54] Speaker 01:
Do you at least agree that you're indicating that you believe the Board had to basically be on a hunting mission to find where the argument was with respect to Claim 6?

[00:07:07] Speaker 03:
No, Your Honor, I don't. There was only one paragraph of law in Ground 1 addressing the packet security gateway limitation that specifically referenced it being on the border of the LAN as well as the LAN comprising standard network devices. A land switch is the epitome of a standard network device. Any reasonable fact finder would look to the very limited cited disclosure and see plainly on the text of law it explicitly stating that network device 146 can comprise a land switch or a firewall.

[00:07:48] Speaker 03:
The groundwork was right there in the petition.

[00:07:51] Speaker 04:
You're asking us to say that it's an abuse of discretion for the board not to go hunting and find this argument that maybe it's a very simple argument, but it's one that the burden is on the petitioner to make.

[00:08:05] Speaker 03:
I think under the unique facts of this case, where the board's institution decision cited the very same relevant portions of both the petition and law with respect to the packet security gateway elements and the packet transformation function elements, and It went on. It didn't have to, but it went on to state explicitly that the petition had sufficiently disclosed the subject matter of Claim 6 and 33.

[00:08:33] Speaker 04:
It didn't say Claim 6 and Claim 33, did it?

[00:08:36] Speaker 03:
Yes, it did, Your Honor. It listed all of the claims in Ground 1, including Claim 6 and 33.

[00:08:45] Speaker 04:
It may have listed them, but did it say we see sufficient argument or evidence that to institute an IPR for Claim 6 or for Claim 33.

[00:08:57] Speaker 03:
I mean, that's the only reasonable interpretation of the board sentence that I could see, Your Honor. Why don't you show me the sentence? Yes.

[00:09:07] Speaker 04:
Turn to... The institution decision, right?

[00:09:09] Speaker 03:
Yes. Appendix 1334. State found that Keysight had, quote, established sufficiently, end quote, that the combined disclosures in law and gun law be taught the inventions covered by, and then it listed all the claims, including 6 and 33.

[00:09:30] Speaker 04:
You're in the last paragraph before E, is that right?

[00:09:38] Speaker 04:
I believe so, Your Honor.

[00:09:43] Speaker 04:
It's true under SAS that the Board, once finding that at least one claim in the petition was met the standard for institution of an IPR, the Board didn't have any discretion other than to institute for all of the claims that you wanted to put at issue.

[00:10:01] Speaker 03:
Is that correct? That's correct, Your Honor. So the Board wasn't obligated to make the statement that it made here. It went above and beyond explicitly identifying claims 6 and 33 in what it said that the petition had sufficiently disclosed. So on that record, when the patent owner knows this, doesn't respond to the disclosures, which are clear enough on the face if you look at them, and then at the oral hearing, ask counsel where the disclosures are located, I respond to the portions in the petition, the same ones cited by the institution's decision that found the claims 6 and 33 were present.

[00:10:36] Speaker 03:
On that record, It's like this court's decision in Unilock 2017 where it found that even though the petition's arguments could have been more clear, the board was obligated to consider them, especially after the arguments were made more clear.

[00:10:51] Speaker 00:
Counsel, are you a defendant in a case where you're still accused of infringing Claims 6 and 33? Correct, Your Honor.

[00:11:04] Speaker 00:
And you think you're at risk of being found liable if we affirm this decision?

[00:11:10] Speaker 03:
There's always that risk, Your Honor.

[00:11:15] Speaker 03:
But one final aspect before I reserve the remainder of my time for rebuttal.

[00:11:23] Speaker 03:
I'd just like to say that the statements at The oral hearing responding to the board's questions on where the disclosure was in the petition were not new arguments under this court's precedent because, as this court has explained, the difference between an impermissible new argument and a permissible clarifying statement depends on whether the argument relies on new references or new portions of a reference that relied on in the petition. Here, Keysight's statements at the oral hearing relied on the same portions of law identified in the petition with respect to the same packet security gateway and packet transformation function limitations to support the same obviousness ground based on law in Gulnabi.

[00:12:06] Speaker 03:
As such, the statements by Keysight's counsel are like those that this court has found to be a permissible clarification of a prior position and the board should have considered them, especially in view of what it found in the institution decision.

[00:12:18] Speaker 04:
Your statement at the oral hearing, consistent with your statement in the brief to us, which I think you'll confirm now, is there is no explicit reference or cross-reference for claims 6 and 33 to the arguments that you made for the other claims that were found unpatentable.

[00:12:39] Speaker 03:
The claim numbers are not present next to, immediately adjacent to the relevant analysis.

[00:12:44] Speaker 00:
So claims are identified by number?

[00:12:46] Speaker 03:
Well, by the substance. Again, look at this court's decision and in renaissance.

[00:12:52] Speaker 04:
That's an argument. That's fine. I'm just trying to establish the fact, which you say in your blue brief at 33 or 32, which you told the board in the portion of the oral hearing you're referring us to, we agreed.

[00:13:04] Speaker 04:
Essentially, we messed up. We did not make an explicit reference. We didn't tie these limitations of these claims to these arguments. Please forgive us. Maybe it's an abuse of discretion not to forgive us, but we didn't do it. Correct? I think there's no question. The petition could have been more clear. Not only more clear, but it didn't do, I mean, you've previously admitted it didn't do these things explicitly.

[00:13:29] Speaker 03:
It didn't include 6 and 33 next to the relevant discussion, but that relevant discussion is there. Again, I would direct this court back to NRA New Vasive, which found under exactly the same fact pattern, without an explicit reference to the claim limitation or the claim number, the disclosure in considering the substance of the petition was nonetheless sufficient based on what it signaled.

[00:13:53] Speaker 00:
I don't see your time is running out. If you wanted to save something, we'll give you two minutes for a bottle.

[00:13:57] Speaker 03:
Thank you, Your Honor.

[00:13:59] Speaker 00:
Mr. Iancu.

[00:14:05] Speaker 02:
Thank you, Your Honor. Good morning, Your Honors. May it please the Court. Andre Iancu from Sullivan & Cromwell on behalf of Centripital. This is a case that tests the meaning of discretion that the board, that the Patent Office has to enforce its own rules and to enforce the statute. The statute is clear. The statute says that the petition must identify with particularity every claim and the argument and evidence that support that invalidity theory.

[00:14:40] Speaker 02:
And the board's practice is crystal clear on this as well. And then this court, in many cases, this court has emphasized that the petitions must provide an element-by-element analysis with specifics, And not just that, but the specifics must be done with understandable explanation on a claim-by-claim basis.

[00:15:06] Speaker 02:
It cannot possibly be an abuse of discretion under these circumstances for the Board to enforce the statute, its own rules under the statute, and this Board's precedent. However one wants to stretch abuse of discretion or arbitrary and capricious standards against This cannot be the case.

[00:15:28] Speaker 04:
Correct me if I'm wrong. It looks like Centripital never called out this procedural failing, not in its preliminary response, not in its patent owner response, not in its surreply. It seems to have first come up, generated by one of the PTAB judges at the oral hearing. Is that correct factually? And if so, why shouldn't we consider this whole dispute waived?

[00:15:55] Speaker 02:
They did not, the petition didn't put these claims at issue through an argument as required by the statute. There was no reason.

[00:16:05] Speaker 04:
It certainly challenged the validity of these claims. You don't dispute that. It may not have made an argument, but it.

[00:16:13] Speaker 04:
ministerially, they put at issue the validity of these five claims, and that was well understood, I would think.

[00:16:21] Speaker 02:
I actually don't know even if that's correct, Your Honor. I mean, the reality is they put it in a headnote, in a heading, and in the conclusion, just listing claims. It's not clear. Why would you take more as a quote typo, the fact that they're missing entire paragraphs of an entire analysis, or the fact that the random claim number appears in a heading?

[00:16:44] Speaker 01:
What is your best case that you could identify for us that just listing these claim numbers in a heading is insufficient to...

[00:16:56] Speaker 01:
be, I guess, explicit argument regarding the unpatentability of these claims?

[00:17:01] Speaker 02:
Well, first of all, there are no cases that the other side has cited or that we have seen where an entire analysis is completely missing. The cases that are before the court in the briefing here are cases where the arguments, the analysis is done, but perhaps new arguments are being made in reply or at the hearing or there's a dispute about the clarity of the argument and so on. We don't believe that this court has ever taken a case where where a claim analysis was entirely missing, okay, and then reversed the board for not considering that analysis.

[00:17:45] Speaker 02:
Now, I do want to address briefly the newvasive case that they mentioned. And that's a case along the lines that I've just mentioned. That's a case where there are actually two IPRs compared side by side, which is interesting to see.

[00:18:05] Speaker 02:
In the first IPR in that case, 507, in the newvasive case, first of all, there was an analysis of the claim. Okay, so again, this is not a missing claim analysis situation. So they had an analysis in that case, and the argument was that it wasn't clear enough, and that was supplemented on reply.

[00:18:35] Speaker 02:
at least the argument was at least in that case even, which was, quote, minimally past the bar, even there, the limitation was at least referenced.

[00:18:49] Speaker 02:
And if you look at that case, you will see that it talks about Frey and Michelson was the new argument that was made in reply, allegedly.

[00:19:01] Speaker 02:
It said that it disclosed quote, dimensions that are longer than wide. That was made in the petition. And that was the actual claim limitation.

[00:19:13] Speaker 02:
So that was actually done in that case in the petition.

[00:19:18] Speaker 02:
And the board and this court then concluded that, look, it was made. It wasn't clearly enough made, but the element was referenced. The analysis was done for the claim, and that was enough. For the second IPR there… Same thing. Same thing in Unilog. In the Unilog case, again, it is not a missing analysis case. That, again, it is a missing, you know, it's a dispute as to whether the argument was made clearly enough.

[00:20:02] Speaker 02:
The petition and the reply in Unilog did address claim four.

[00:20:08] Speaker 02:
period. And, you know, it was perhaps not addressed clearly enough.

[00:20:14] Speaker 02:
And the analysis was this court concluded that, you know what, it was enough.

[00:20:18] Speaker 01:
But here, Your Honor, it's really... I'll cut you off from answering a good question that Judge Stark had for you about why there wasn't any sort of waiver here in the sense of centripetal not pointing out this potential failing.

[00:20:35] Speaker 02:
It's not our burden, Your Honor. It is their burden to prove invalidity and to make it with particularity in the petition itself. They simply did not do it here. And a couple of more points on that.

[00:20:51] Speaker 02:
Even at the oral argument, they didn't argue it. First of all, they didn't argue it in the petition itself. They didn't have it in the expert report attached to the petition. So we can't just say, huh.

[00:21:05] Speaker 02:
There was like a printing error or a typo or something. They didn't do it. And then they didn't do it. So it's not our burden to reply to an argument that wasn't made.

[00:21:16] Speaker 02:
Then they didn't do it in reply, and they didn't even do it at the hearing until, as Judge Stark mentioned, a PTAP judge asked for it.

[00:21:24] Speaker 04:
Pete, what do you say about the line in the institution decision at 1334, petitioner establishes sufficiently the combined disclosures and Longo-Golnaby teach the inventions covered by... And they list the claims, including these at issue today.

[00:21:38] Speaker 02:
They just list the claims. They're just copying and pasting what they see in the petition. So they do not do an analysis. The board itself in the institution decision does not provide any reasoning where, why there is a land switch there. It doesn't say that there is. It doesn't utter the words in the institution decision. And by the way, so that does not mean that they've done the analysis.

[00:22:08] Speaker 02:
And more importantly, even if they had done it, they have a right to change their minds upon a further review of the record in the final written decision.

[00:22:17] Speaker 04:
Is it your contention that the land switch limitation of four of the five claims at issue today is unique to those four claims and is not the same limitation as in claim one that council was directing us to?

[00:22:32] Speaker 02:
It's absolutely not in claim one. It is only in claim six and those other four similar claims. It does not appear anywhere else in their papers. And importantly, they keep talking about you know, that they addressed it in Claim 1. They actually didn't. Land switch and the word switch does not appear in their petition at all, or in the record, in the reply, or in their expert declaration. What they do in Claim 1 is they equate an element in Claim 1 with a firewall requirement in the law reference.

[00:23:13] Speaker 02:
And they do the same thing at the hearing, by the way. It's all about the firewall. Even when they try to equate the two, they don't talk about a land switch. This is simply a situation where the record is completely devoid of an analysis of claim limitations. Of a limitation unique to the claims that survived the IPR. Correct. And the same is true for claim 33, which is unique and very different from the other claims that they are trying to rely on.

[00:23:46] Speaker 04:
Yeah, 33 stands by itself. How is it different materially, or what limitation is in just 33 that's not in one or more of the claims that the board found were unpatentable?

[00:23:59] Speaker 02:
Yeah, so what you have to do, Your Honor, is look at claim 33.

[00:24:04] Speaker 02:
and compare it to the other claims, the easiest to do visually is to compare it to claim 32, which is right above it, and you will see that just linguistically they are very different, okay? And claim 33 is much shorter, first of all.

[00:24:24] Speaker 02:
It talks about...

[00:24:28] Speaker 02:
at least one packet transformation function configured to route the associated packets to a monitoring device, okay? Claim 32, the one before it, does not talk about the packet transformation function doing anything. It's not there. The relevant limitation there is at the end, routing based on a subset of information in the identified packet, okay? It doesn't tell you that it's the packet transformation function that's configured to do that.

[00:24:58] Speaker 02:
And also the fact that claim 32 has the routing done based on something, on the information in the identified packet, that based on is not in claim 33. And here's the proof in the pudding.

[00:25:15] Speaker 02:
When they listed the claim 33...

[00:25:19] Speaker 02:
which, again, has no analysis at all in their petition or expert report, but when they listed it in the section heading, it was for ground one.

[00:25:29] Speaker 02:
Okay? These other claims, like 32 and the others, that they're now relying on, that analysis is done under ground five.

[00:25:40] Speaker 02:
So the grounds don't even match up.

[00:25:42] Speaker 02:
So under any possible reading of what...

[00:25:50] Speaker 02:
The statute, the board's discretion, and the standard of review here before your honors, this, the PTAP's final written decision here has to be affirmed with respect to these dependencies.

[00:26:05] Speaker 04:
It would be just as a counterfactual, not the way you want it to come out, but...

[00:26:10] Speaker 04:
What would be the problem with this court saying, in some rare instances, it is an abuse of discretion for the board when the limitation at issue has been signaled? I think there was a phrase from your friend on the other side.

[00:26:29] Speaker 04:
It's obvious. It's basically in the light of day. It's indisputable. And by the way, the patent owner didn't dispute the sufficiency of the argument. What would be... wrong with us saying, at least in some narrow circumstances, it is an abuse of discretion for the board not to put two and two together when we can all see it in the light of day in an appellate context?

[00:26:49] Speaker 02:
First of all, it just wasn't signaled. It really wasn't. They didn't talk about the switch. The word is not, or land switch. They're just not there, number one. Number two, it wasn't signaled or cross-referenced in other claims.

[00:27:06] Speaker 02:
It's just not there. And, Your Honor, if you do it here, I just don't think it can be done narrowly enough at all.

[00:27:15] Speaker 02:
And it would create a situation on these egregious facts where it's missing from everywhere, everywhere in the record.

[00:27:27] Speaker 02:
It will just simply open the door for petitioners to completely sandbag Not just the patent owner, but the patent office.

[00:27:40] Speaker 02:
And ultimately, what does it mean to give discretion to the office to enforce its own rules and the statute, if not given in a situation like this?

[00:27:55] Speaker 00:
Thank you, Counsel.

[00:27:57] Speaker 02:
Thank you, Your Honors.

[00:28:01] Speaker 00:
Mr. Dietrich has some two minutes rebuttal.

[00:28:07] Speaker 03:
Thank you, Your Honor. Four quick points.

[00:28:10] Speaker 03:
First, I'd like to be clear that this was not an instance of sandbagging.

[00:28:16] Speaker 01:
Do you agree that land switch does not appear in the petition itself?

[00:28:21] Speaker 03:
Those words next to each other are not on the face of the petition.

[00:28:25] Speaker 01:
Not on the face of the petition. Is there somewhere else that you think they're ghostwritten? Like, I don't understand what you mean by not on the face of the petition.

[00:28:32] Speaker 03:
Well, the paragraph discussing the packet security gateway corresponding to Laws Firewalls 146 referenced it being out of LAN and comprising standard network devices. A LAN switch is the most standard of standard network devices.

[00:28:51] Speaker 01:
That points the reader... Point me to exactly what you're... describing here. Give me a page site so I can look at it.

[00:28:57] Speaker 03:
Appendix 300 and 301. It's a single paragraph describing the packet security gateway comprising a firewall at the standard network devices.

[00:29:18] Speaker 03:
And just to be clear, there's no dispute at any point by opposing counsel, that the cited disclosure in that one short paragraph discloses that Firewall 146 comprises a land switch.

[00:29:31] Speaker 03:
Centripital also was on notice of this, both by the petition and the explicit institution decision. I'll point, Your Honors, to Appendix 1369, which explicitly warns Centripital that any arguments not raised in its response would be waived. And one point on NRA new basis, I believe opposing counsel stated that the claim limitation was longer than wide. That's not the case. That's a key point. The claim limitation was a ratio of 2.5.

[00:30:02] Speaker 03:
Nowhere in that petition referenced that ratio. That's the entire point. There was no reference to the claim number or the subject matter, but rather the signal to longer than wide was enough to infer the applicability to that claim limitation.

[00:30:20] Speaker 03:
And just really quick on packet transformation function.

[00:30:25] Speaker 03:
The petition referred to paragraph 103 and Dr. Shakespeare's testimony that law discloses the packet transformation function of rerouting packets and logging. That's the very same disclosure that the board relied on in other claims like claim 32 to disclose an identical limitation. There's no question that there's not enough there to signal on that claim limitation, even on the face of the board's final written decision itself.

[00:30:52] Speaker 00:
Thank you, counsel. Thank you.