[00:00:00] Speaker 03:
Our first case is MPH Technologies v. Apple, 2025-10-69. Mr. Schaffer. Is it Schaffer?

[00:00:12] Speaker 02:
Schaffer. Thank you, Your Honor. Good morning, Judge Lurie. May it please the court. Your Honor, it's Derek Schaffer here on behalf of Appellant MPH.

[00:00:22] Speaker 02:
Apple prevailed below only by departing from the correct construction of key terms after the PTO had upheld the claims at issue based on those constructions. That effort, Your Honors, defies not only Apple's own prior position, but also the claim terms themselves, together with basic maxims and precedents that teach how they are properly construed, just as a person of ordinary skill in the art would construe them. Simply reading the claims in our submission suffices to refute the district court's erroneous constructions and to dictate reversal.

[00:00:53] Speaker 02:
And let me start, Your Honors, if I may, with the IPSec protocol, which we submit was added as a limitation that does not exist in claim 949 for the 949 patent.

[00:01:05] Speaker 02:
Your Honors, the limitation is imposed you will see nowhere in the claim. When you get to claim two, directly depending from claim one, you see that that claim is limited to, quote, using an IPsec connection.

[00:01:19] Speaker 01:
Claim eight says something like we're in the secure connection is an IPsec. I mean, that...

[00:01:27] Speaker 00:
It's a little bit of evidence against you.

[00:01:29] Speaker 02:
Judge Stoll, you're right that there is a Scrivener's error. We can demonstrate how that happened in taking what were European patents, where there could be dependency from multiple preceding claims. And so what happened, and we would call it a Scrivener's error, you can see it described at Appendix 2076 and 2077.

[00:01:48] Speaker 02:
On the ECF docket, submission 99, exhibits 2 and 3, you can see, Judge Dole, how what had been dependent from claim 2, when it was just being rewritten for the PTO, became dependent from claim 1. So claim 1 was written in instead of claim 2.

[00:02:06] Speaker 02:
I'm sorry, it's for U.S. Patent Office. I'm sorry.

[00:02:08] Speaker 00:
It's okay, it's okay. I'm asking, who did the Scrivener's?

[00:02:12] Speaker 02:
It was the applicant, Your Honor. It was on the applicant. And so claim 8 had been dependent from claim 2, which explicitly referenced the IPSec connection. But I'd still submit judgment. Unasserted claim 8.

[00:02:27] Speaker 02:
in our view, cannot overcome what is a clear-cut case of claim differentiation when you get to claim two directly under claim one.

[00:02:37] Speaker 01:
And if that wasn't clear enough... Let's say hypothetically, if the specification, like I think the other patents who had said something like the secure connection is an IPSAC connection, would that change things in this case for you?

[00:02:53] Speaker 02:
Only if you add one other item to the hypothetical, I would say, Judge Stoll. You have to take out the express provisio that you find in Appendix 68, Column 9, Lines 31 to 34. Let me just read it to your honors, okay?

[00:03:06] Speaker 01:
Hang on just a second. Let's make sure. This is, what page did you say?

[00:03:10] Speaker 02:
It's Appendix 68 for the specification.

[00:03:13] Speaker 01:
But I want to just make sure.

[00:03:14] Speaker 02:
No problem, Your Honor. And it's Column 9, Around 31-34. Just at the end of the...

[00:03:21] Speaker 02:
of that portion.

[00:03:23] Speaker 01:
Right before where it says the figure one is this.

[00:03:25] Speaker 02:
Exactly, Your Honor. And here's what it says. Quote, The invention is not restricted to the details of the figures and the accompanying text.

[00:03:35] Speaker 03:
That's boilerplate, isn't it? That appears in all patent applications.

[00:03:40] Speaker 02:
You might say that, Judge Lurie, except for what follows. And then we get to, or any existing protocols such as the currently standardized IPsec or IEC. So it's referencing not just IPsec, but also IEC. as another alternative protocol, and those are illustrative, Judge Dole, of what the claim is not being limited to.

[00:04:04] Speaker 01:
So you're saying it's really important that in column 9, it says specifically that the invention is not limited to IPSEC. Judge Dole, if I try... Is that the same thing? Is that a yes?

[00:04:18] Speaker 02:
Well, I think it is helpful. I don't know that it's not. I think there are other things that I would point you to, but I think that is outcome-determinative by itself. I think if I tried to argue to your honors there's an unstated claim limitation, notwithstanding what we explicitly said was not a limitation of the claim, you would vote me out of the courtroom before I sat down.

[00:04:38] Speaker 01:
I hear you. I would say that is what you're pointing out there looks pretty strong to me.

[00:04:46] Speaker 01:
there's also some language in the specification that goes the other way that I'm sure your friend on the other side is going to reference. Like, for example, an essential idea of the invention is to use standard protocol IP stack in column 7, lines 29 through 30, right? I mean, I think that was something that was highlighted.

[00:05:10] Speaker 02:
It is, and I understand why he highlights it. I'd note that IPSec there, even there, is in a parenthetical, but you don't just read that one portion of the specification standing loan judge tool. That comes many paragraphs in after the abstract has made no reference to it. The object of the invention has made no reference to IPSec, and it's really one paragraph among many, and it's expressing a preference. as, you know, as the kind of existing expectation.

[00:05:41] Speaker 01:
The title doesn't reference it. The technical field doesn't reference it as well. And one other point, Judge... But can I ask you something else? Yes. I mean, like, just legally, how should we be thinking about this? And how are you thinking about it? Because what I was thinking, and I want you to know, I want to know what you think of this, is I see the claim and it says secure connection and that's pretty broad.

[00:06:04] Speaker 01:
If I'm going to read in that secure connection is IP-stacked, there better be something pretty strong in the intrinsic evidence for doing so, right?

[00:06:12] Speaker 02:
I think that's exactly right.

[00:06:14] Speaker 01:
It has to be clear and unambiguous?

[00:06:15] Speaker 02:
Clear and unmistakable, yes. And I think then there's the provisio. Let me point you to something else, if I may. Appendix 66, column 6, lines 64 to 65, which refers to IPSec protocols as preferably. Preferably used. Not exclusively used, but preferably used. Again, making clear that that is a preferred embodiment, not the exclusive embodiment. So I think you have multiple telltale indications in this specification. And one other thing, if I can gild the lily one bit further, there's claim three.

[00:06:49] Speaker 02:
Of the 949 as well, which refers to the method of Claim 1, but forming the secure message by making use of SSL or TLS protocols.

[00:07:00] Speaker 03:
Counsel, why don't you move to the 581 patent?

[00:07:04] Speaker 02:
If I may, Judge Lord. And if I could just make one point about unique identity, I think it does rise or fall with this question of IPsec because the SPI values that the court read into the claim was really a function of IPsec. a function of that claim limitation that falls away with it. You also have claim differentiation in light of Claim 8, which refers to the SPI values. And you have a disclosed embodiment of Ike with an Ike cookie. You can find that at Appendix 7071, Columns 14-15, which says, instead of SPIs.

[00:07:37] Speaker 02:
The so-called Ike cookies are used as translation indices instead. So I don't think you can get to the SPI values as a limitation of the claim once IPSec is taken out of it.

[00:07:49] Speaker 01:
On indefiniteness, I take it that your view is that whatever is in the claim is consistent with something in the specification?

[00:08:01] Speaker 02:
Well, I think that's true, and I think the claim is clear-cut about what the other terminal is, it being the third computer after the intermediate computer, after the security gateway.

[00:08:12] Speaker 01:
In your view, is the person of ordinary skill in the art reading the specification would see that there's something corresponding to that?

[00:08:19] Speaker 02:
That is absolutely my submission, Judge Stoll, but it's backed by Apple's expert. Their person of ordinary skill in the art, you can see it in Appendix 3347 to 3349, testifying what other terminal is. It's exactly what we say it is. The third computer after the intermediate terminal. And you can also see the district court acknowledging expressly. At Appendix 2728, there's this argument based upon what Apple's expert, in fact, testified to, and then it's just a non sequitur when the court nonetheless says, but I find clear and convincing evidence of indefiniteness.

[00:08:54] Speaker 01:
Can I ask you something? I got a little confused there by your answer. As I'm thinking about indefiniteness, and I'm thinking it really largely relates, it's a legal issue largely with some factual underpinnings, So my question is, whose expert were you relying on just now in that answer?

[00:09:11] Speaker 02:
Apple's expert from the IPR, who had testified in the IPR. So that was submitted to the district court, and the district court took cognizance of that at the reconsideration stage, but said, I nonetheless find clear and convincing evidence of indefiniteness. But to answer Your Honor's question.

[00:09:26] Speaker 01:
Could you maybe walk us through the claim or the specification to show that? in your view, how this claim works so that we can understand whether it's the scope of it and whether it's definite or not?

[00:09:38] Speaker 02:
Yes, Your Honor, and I'd start with the 581 itself, with the express claim of it, where it is, I think, quite clear about what is happening and the interplay between the computers that are described. It's a method for ensuring secure forwarding of a message in a telecommunication network, having at least one mobile terminal and another terminal and a security gateway between the method comprising. And it goes on to describe the mobility and the change of address at the first computer terminal, the mobile terminal.

[00:10:13] Speaker 02:
But then when it talks about the other terminal, it's talking about where it is going after passing through the intermediate terminal, essentially the security gateway. And that's how it concludes. The mobile terminal sending a secure message in this secure connection from the second address of the mobile terminal to the other terminal via the security gateway. So, Judge Stoll, I'm not... feigning incredulity at the indefiniteness argument when I tell you I don't understand how the person of ordinary skill in the art would not understand what other terminal means in that way.

[00:10:49] Speaker 01:
Can I ask you something? I hear you. You're going a little fast for me. But can I ask you, the mobile terminal sending a secure message and the secure connection from the second address of the mobile terminal to the other terminal, is the secure connection from the second address of the mobile terminal to the other terminal?

[00:11:10] Speaker 02:
I think by definition it is because you've had the secure passage through the secure gateway.

[00:11:17] Speaker 02:
That's the role that the secure gateway is playing. Whether there's separate securitization of the message en route to the other terminal does not matter to the claim. You could have that or not. But the point is it is a secure message by virtue of the fact that it is passed through the intervening terminal.

[00:11:37] Speaker 01:
So my understanding of why this was thought to be indefinite is that Part A says establishing a secure connection between a first address, the mobile terminal, and the address of the security gateway, right?

[00:11:55] Speaker 02:
Yes.

[00:11:56] Speaker 01:
Does claim 180 change what that secure connection is?

[00:12:00] Speaker 02:
I don't think so, Judge Dole. And I think it's, here's what I mean. I think the person of ordinary skill in the art understands that you necessarily have a secure message once it has gone through the intermediate computer serving as a security gateway. We analogize it to if you have a letter in a locked office. The fact that it's entered into, or you could think about it as going on a military guarded passageway, you pass through the gateway, that's secure transport after that, even if you don't have separate military convoy that's accompanying whatever is being delivered.

[00:12:37] Speaker 03:
The message is by... Can I ask a question? I have a question first.

[00:12:42] Speaker 05:
I just want to take you back to the 949 briefly and that language on Claim 9. I don't really understand what the purpose of that language is.

[00:12:51] Speaker 05:
If it says it doesn't... It's not restricted to current stuff. Do you mean then it could cover not yet invented protocols?

[00:13:02] Speaker 02:
I think whatever is known to the art judges. The invention is not focused on the security. It has to be known to the art. It has to be known to the art as a means of securing a message. What was known in the art except these two protocols? Oh, there are others too, including the ones that I referenced. There was SSL at the time.

[00:13:20] Speaker 05:
But not what they're using, apparently. Otherwise, you'd be arguing for infringement based on that. It just seems to me that if you're trying to argue for, you can't be arguing for yet-to-be-invented security protocols because you'd have all sorts of you know, indefinite as her in description. So it has to be based upon security protocols known at the time. And the patent only talks about IPE or IP and IKE.

[00:13:47] Speaker 02:
Judge Hughes, my respectful disagreement, I don't think it matters to the appeal that's before your honors. If you have a newly invented computer, that doesn't mean that a claim can't read on it. There may be things that are peripheral to the invention, and the invention saying, we're going to take whatever is a standard security protocol. There has to be what the invention claims as an enhancement to that, namely using the secure gateway that allows mobility at the first address, even as you're maintaining a security protocol.

[00:14:14] Speaker 05:
How are you going to get that if it's a new security protocol that's never been invented yet? I mean, is it going to be a DOE kind of argument?

[00:14:21] Speaker 02:
Well, it could be that, Your Honor, but I think it also is no different from computers or telephonic devices or whatever it may be that's part of a claim, even if that incidental component may be evolving with technology.

[00:14:34] Speaker 03:
Counsel, we'll save three minutes for rebuttal.

[00:14:37] Speaker 02:
Thank you, Your Honor.

[00:14:38] Speaker 03:
Mr. Matsui.

[00:14:47] Speaker 04:
Thank you, Your Honor, and may it please the court. Brian Matsui for Apple. I'd like to focus on three issues, the secured terms, indefiniteness, and exchanging keys with one another. But I'm, of course, happy to address any issues or questions the court might have. Starting with the secured terms, the district court correctly construed these terms to require IPSec. These patents address a specific problem with IPSec, and they provide a specific solution for IPSec, which the patent calls enhanced IPSec.

[00:15:17] Speaker 04:
I think if we look at the specification at column four, it identifies problems with IPsec when a mobile device moves from one location to another. And then at line 11, it says this is problematic.

[00:15:31] Speaker 01:
At line 27, it says – How do you deal with – and I agree with you. I think this is a really close issue.

[00:15:39] Speaker 01:
How do you deal with some of the other language that says, for example, that the invention is not restricted to any existing protocols, such as the currently standardized IPSec?

[00:15:53] Speaker 04:
So I think that that language, that reservation language, needs to be understood in the context of this entire patent, which is talking about the IPSec problem and the IPSec solution. And so the real focus is talking about the currently standardized IPsec in column 9, which it's talking about. It's preserving the ability that if there's improvements or new standards with IPsec, then that would be applicable. The invention would still improve it. And as far as the other protocols, Judge Stoll, this patent does contain other protocols.

[00:16:25] Speaker 04:
For example, at line 1, it's at – sorry, column one, line 48, it says that even if some applications already have built-in security protocols, the use of IPSec further enhances the security. And then it talks at line 66, it's talking about authentication header and ESP, which are additional protocols which are used with IPSec.

[00:16:57] Speaker 04:
So this reservation language is really talking about protocols that are going to be used with IPSec.

[00:17:05] Speaker 01:
And I think you need to understand that patent law, when someone uses a broader term than their preferred embodiment or even just, you know, what is disclosed in their specification, their claims use something broader. We don't usually read in to the claim, the more specific protocol. I mean, secure connection is really... No, I completely agree. You know, it's a difficult question because in a case where you're going to read a particular protocol and there's some wiggle language in the specification, what do I do?

[00:17:41] Speaker 01:
Am I supposed to be looking at what is the legal construct I'm looking for? Lexicography? Or is it disclaimer? Or is it your view that they've just mentioned, like the district court said, this term is mentioned so many, many times, 200 times.

[00:17:59] Speaker 01:
The specification uses the word IPSEC, and therefore it should be read into the claim.

[00:18:06] Speaker 01:
What is the legal standard?

[00:18:07] Speaker 04:
So I don't think that there is a plain and ordinary meaning of a secure connection here. So I think that the job is not a plain and ordinary meaning. I think that the question here is whether or not there isn't... What is the ordinary meaning of secure as used in this... What does the ordinary meaning of secure connection mean, a connection that's secure? I mean...

[00:18:28] Speaker 04:
It could be, but of course, the patent discloses other secure connections which are not part of the invention. Like I just mentioned at column 1, line 48. So a person of ordinary skill in the art, when they look at this patent, will realize that there are multiple possible reasons interpretations of what secure connection could mean.

[00:18:47] Speaker 01:
I understand, but let me ask you something. Do I understand what the plain and ordinary meaning of a term is by looking at the specification to understand how it uses the term? Or do I understand what the plain and ordinary meaning of a term is by looking at it in terms of how a poser, a person of ordinary skill in the art would look at it And then I turned to specification.

[00:19:05] Speaker 04:
I think that it would be, I think that both are possible. I think that if there was expert testimony, I mean, I think that the question of whether or not there is a plain and ordinary meaning usually would have an expert testimony saying that there is only one meaning in this field as to what the term means, but that's not what we have here. And so I think that that, There is no expert testimony saying that the meaning of secure, but I think that the court can try to discern what the plain and ordinary meaning is if there is one. And here, I don't think there is one, but even if there were one, this is still a case like Vernetics or GPNE.

[00:19:41] Speaker 04:
Like Vernetics is a situation where the problem that was identified was the anonymity, and then the solution was the anonymity. And that's precisely what we have here in this situation. It's not just accounting exercise. It's the fact that this patent really is only about IPSec and improving it because there's this problem that's identified with IPSec, and then there's a solution with respect to IPSec.

[00:20:08] Speaker 05:
What if you could use the method identified or the invention identified to improve IPSec here, even if we agree with your argument that that's what it's doing, to improve other security protocols?

[00:20:24] Speaker 04:
I mean, that's possible, but it's not what they've claimed. And I think that that's the fundamental problem here is that they didn't say that there's just a problem with respect to security protocols when a device moves. They zeroed in on IPSec and said that this is a problem with IPSec. And then they zeroed in and said,

[00:20:44] Speaker 05:
Is that because it's the way IPSec functions as opposed to other possible security protocols? Or would their invention just apply across the board?

[00:20:54] Speaker 04:
I don't think it would apply across the board, because if you look at column 1, line 48, it notes that there are other security protocols with respect to applications.

[00:21:02] Speaker 01:
And then IPSec... Is it a technical matter that the invention here doesn't work with other protocols that were in existence at the time of IPSec? And do you have evidence to support that?

[00:21:12] Speaker 04:
I don't know the answer to that, and I don't think I need to know the answer to that, because I think that when we look at this patent and the specification, it just zeroes in on IPSec, and that that's the intent of the invention.

[00:21:24] Speaker 01:
It says preferably IPSec. So the preferably... We would say that that's not to the exclusion of all other protocols.

[00:21:33] Speaker 04:
Certainly, Your Honor. When it says preferably IPSec, you need to look at the entire passage, the entire...

[00:21:40] Speaker 04:
paragraph that follows because it's saying preferably the IPSec connection and then it goes on and describes all these other requirements and that's essentially claim one when you look at those requirements in that paragraph and so it's saying preferably yes that that's basically what is preferred but even if that was some sort of you know magic word that was the same case in gpne where there was some language along those lines and this court still said that the invention was limited to ipsec one thing that i'll to to the to what was disclosed one thing i'll note on claim two is that there's additional claim scope in claim two it doesn't just say let's take everything in claim one and then apply to IPSec.

[00:22:24] Speaker 04:
It says more than that. It requires the method further comprise forming a secure message by using an IPSec connection between the first computer and the second computer.

[00:22:36] Speaker 01:
I think that the best thing that the appellant has going for them on this claim, too, is that it says an IPSec. And, of course, they're going to come back and say, well, look at claim A. And I understand that.

[00:22:49] Speaker 04:
So I think that at the most it's a draw, but I think that from a claim differentiation standpoint, there is additional claim scope that is there. I would like to just address really briefly the key exchange argument, exchanging keys with one another, because I think that dovetails really well with the secure term in the same patent. If the district court erred by placing too much weight on on the specification for the secure claims, then its error is even more apparent with exchanging keys with one another, where it completely eliminated the requirement where the district court held that negotiating and exchanging keys with one another was just establishing a cryptographic key.

[00:23:29] Speaker 04:
So it completely eliminated that requirement based upon...

[00:23:34] Speaker 04:
the notion that it was a goal of exchanging keys with one another to establish cryptographic keys. And so I don't think that, I think that to the extent that the court is going to say that the language of the claims is what is controlling here, that has to also apply with respect to exchanging keys with one another where the prosecution history and the claim itself makes that clear in the 949 patent. Turning to indefiniteness now, I think if we look at the claim itself, it just doesn't provide a person of ordinary skill in the art with any reasonable certainty.

[00:24:09] Speaker 01:
Sorry to interrupt you, but how do you respond to the emphasis that Apple had a different perspective and a different proceeding?

[00:24:20] Speaker 04:
So I have several responses to that, but the first is when we look at the actual testimony, and a lot of it was cited, it was in the context of an IPR, and the discussion is all about what the prior art discloses. So when you look at those pages, it's really talking about here's what Ishiyama, here's what the prior art discloses. And so it's not a claim construction. It's not a situation where we had a claim construction section where we were talking about the claims. It's all in the context of here's what this prior art discloses.

[00:24:52] Speaker 04:
It has this. It has that.

[00:24:53] Speaker 01:
He did have an understanding of the claim scope in order to be able to talk about what the prior art tied into the scope of the claims.

[00:25:01] Speaker 04:
In the context of an IPR, certainly yes, but the discussion was purely in the context of what the prior art disclosed. And this was an IPR, of course, where indefiniteness is not something that can be raised. And this court has held that even if a claim is indefinite in an IPR, you're still allowed to show that the prior art discloses indefiniteness.

[00:25:20] Speaker 04:
what the claim has. And so that's precisely the situation here. This isn't sort of the killer evidence that they make it out to be.

[00:25:27] Speaker 01:
You take the patent owner's claim construction and then show that that would have been invalid.

[00:25:35] Speaker 04:
Right, right. It's not a situation where we had a section where our expert was talking about the claims go back and forth. I think the closest they come is they point to a deposition which was not actually submitted to the district court, so I think it would be improper for the court to consider it. But even there it's confusing because it says one option at 10996 and then it's not something that is very crystal clear like you would expect in a declaration.

[00:26:04] Speaker 04:
On the indefiniteness

[00:26:06] Speaker 01:
I want to ask you a specific question on indefiniteness. I mean, looking at, like, figure one of the patent... Oh, I'm looking at the wrong patent. Looking at, say, figure two of the patent, I think the claim, when it uses the phrase, you know, it's talking about a first secure connection, I think it's between, I guess...

[00:26:33] Speaker 01:
Number two.

[00:26:34] Speaker 01:
And then later, the last element of the claim is talking about a connection between one and three through number two.

[00:26:41] Speaker 04:
Do you agree with that?

[00:26:43] Speaker 01:
I think that this is... I don't know what the... I read the claim and I think I know what it's saying.

[00:26:47] Speaker 04:
I think that that's one possible reading. In fact, we heard a new interpretation from counsel today because my understanding of what they were saying before this court was that the CPR connection started at the first...

[00:27:01] Speaker 04:
computer and went to the gateway in both elements A and elements E, but now I seem to have heard that maybe in element E it goes from the first computer to the other terminal. And I think that that's the problem here, is that when you look at element A, it says that the secure connection goes from the mobile terminal to the gateway. And then when you look at element E, it says the secure connection from the second address of the mobile terminal to the other terminal via the secure gateway.

[00:27:31] Speaker 04:
So a person of ordinary skill in the arts is not going to know.

[00:27:33] Speaker 01:
I'm confused though because I thought that was the whole point of their invention was that this device one could move all around and you still could have a secure connection although through the security gateway to the other computer number three.

[00:27:50] Speaker 04:
I think that that is, but they still have a secure connection that ends at the gateway in element A, and then they have a secure connection that ends at the other terminal, if you look at the language of the claim, or, as they said in the briefing, that it ends at the gateway. And I think that a person wearing a skill in the art, when they look at the specification, is going to want some guidance. And what they're going to find out is they're going to find regretful and unartful language. I mean, that's what they have said, that they made some regretful and unartful language.

[00:28:19] Speaker 05:
Well, regretful and artful language doesn't mean a skilled artisan can't understand this. By looking at the specification, it seems like the whole point of the invention is to recognize going through a gateway to a second end point. and being able to move on the first leg of the secure connection from mobile device location to other location. And so the leg from the gateway to the second connection isn't the invention.

[00:28:50] Speaker 05:
It's presupposed that that's going to be a secure connection. The whole invention is that first part. Why wouldn't a skilled artisan look at this patent, look at the language, and look at the specification and understand that's what it's about? I mean, it doesn't seem that hard to me.

[00:29:07] Speaker 04:
I think that, yes, someone could look at this, the patent, and say that's what was intended. But then looking at the claim language would only lead to the confusion because it talks about the secure connection.

[00:29:21] Speaker 05:
I mean, I'm an English major. I could nitpick every single claim language you have to death and make it look like it was nonsensical and you can't figure out what it means.

[00:29:32] Speaker 05:
We don't do that in the law. This one seems to me to be clearly an artful, but it seems to me pretty clear that what they're talking about is the invention that, you know, you don't have to reestablish a secure connection every time you move from point A to point B, or frankly, sometimes staying in point A, but changing direction.

[00:29:52] Speaker 05:
whatever your address is, because sometimes that happens. That's the whole point. Everybody knows the second half is a secure connection. The first half is the enhanced part.

[00:30:02] Speaker 04:
May I respond, Your Honor? Yeah, sure. So I think that the problem is that it's more than just in artful language. It uses the term other terminal inconsistently between the claims and the specification. And Apple should be entitled to look at the claims and know what they need to do not to infringe here. And it can't just be a situation where they have to read the specification and say, yes, this is the essence of the invention. When you look at the claims, it doesn't provide guidance. And then a person of ordinary skill in the art, when they look at the specification, would be confused.

[00:30:33] Speaker 04:
Now, yes, they could say that that is the essence, but that's not what the claims themselves say. If there are no further questions, we would ask the court to affirm.

[00:30:42] Speaker 03:
Thank you, counsel.

[00:30:44] Speaker 03:
Mr. Schaefer has some rebuttals on.

[00:30:46] Speaker 02:
Yes, thank you.

[00:30:48] Speaker 02:
Judge Stoll, understanding why you see it as a close case on this question of whether there's a claim limitation that's not in the claim, I think it's not once you realize that the effort that Apple is making is to inject a claim limitation that's not there in the claim itself. And when you read the claim language, right when you get to claim two, you see that there is claim differentiation and a dependent claim that's specific to use of the IPSec protocol. And then you get to claim three, and claim three has other protocols, also a dependent claim, but other protocols that are not IPSec, SSL and TLS protocols.

[00:31:25] Speaker 02:
And then you get to the proviso, which I know, Judge Lurie, you said it may seem like boilerplate at the start, but when you go on and it says the invention is not restricted to, it goes on, any existing protocols such as the currently standardized IPsec or Ike, it is making pellucid that this is not going to be restricted to IPsec or one or another protocol. And if I try notwithstanding that, To add that claim limitation in order to overcome prior ARC, your honors wouldn't have it.

[00:31:59] Speaker 02:
And I don't think it should work coming from Apple after their invalidation effort at the IPR failed. I think the claim construction correctly is not confined to IPSec, and I think you have multiple tell-to-tell indications of that also when you get to the specification. Then we get to the indefiniteness question. I'm not going to say it any better than Judge Hughes did, but I do want to note there are very few perfect patent claims that come before the court when you combine that with a specification. And we, when we say that there was an inartful use of other terminal in one portion of the specification, are not coming close to to conceding that this is the rare case for finding indefiniteness by clear and convincing evidence.

[00:32:40] Speaker 02:
I think the claim itself actually is quite clear on this, even by its literal terms, even as parsed by an English major, and I'd emphasize that the connection in 1A is the same one as the connection in 1E, that we were talking about, Judge Stoll, where it's talking explicitly about going from one computer to the other terminal via the secure gateway as the intervening checkpoint that establishes the security even as you have mobility of the first address. And the last point, Your Honors, is because Mr. Mitsui offered his alternative construction to Your Honor, we don't think that's properly part of the appeal.

[00:33:16] Speaker 02:
There's no cross-appeal on that, Your Honors. This is not an alternative ground for affirmance. The district court's claim construction of key exchange is no more an issue than any other aspect. of the district court's claim constructions. And if you were nonetheless to entertain this argument coming from Apple, every time an App Ali comes up before your honors... If we agree with him on security, we don't have to consider this argument anyway, right? That's correct. I hope you don't reach that conclusion. I understand. But then I think these are arguments for just revisiting all aspects of the district court's claim construction.

[00:33:50] Speaker 02:
I don't think your honors should go down that path, but if you have questions about key exchange, I'd be glad to speak to those. We think the district court got it right. and that you wouldn't be exchanging the actual keys, that would defeat the whole purpose of security. You'd be exchanging the information that leads to the keys that are then negotiated and agreed to.

[00:34:07] Speaker 03:
Thank you, counsel. Your time has expired and the case is submitted.

[00:34:11] Speaker 02:
Thank you, Your Honor.