[00:00:00] Speaker 01:
Our first case for argument today is 25-1207, Zilk Cloud v. Cisco Systems. But before I have you come up, I want to say thank you to Judge Moore from the Southern District of Florida, who is joining us today by designation on this panel. We're very much excited to have you here.

[00:00:18] Speaker 00:
Thank you.

[00:00:19] Speaker 01:
Okay, so Mr. Milliken, please proceed.

[00:00:22] Speaker 00:
Thank you.

[00:00:23] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:26] Speaker 00:
I'll begin with claim construction. The board's errors there require reversal or at the very least vacator. The key question here is this. Are provision and activate as used in this patent broad enough to encompass merely accessing or logging in to an existing service?

[00:00:46] Speaker 04:
Do you, and I'm sorry, I'm jumping right in. Are you arguing those two terms separately or together? I think you're arguing them separately, but I want to make sure, because your first sentence suggested they go together.

[00:00:59] Speaker 00:
They do mean slightly different things. I think they are very closely related, and the parties treated them below is very closely related, because the...

[00:01:09] Speaker 04:
excuse me, the request to provision is when the user asks for... If I didn't agree with you on request to provision, would I then be bound to not agree with you on activate?

[00:01:21] Speaker 00:
No, I don't think that our argument requires winning on the construction of both. I think if you interpret either the request to provision or the activate term to require adding a new service, something that the user didn't have before, then the board's construction is wrong and Cisco's invalidity theory fails. Now, the board seemed to think that these terms are broad enough to encompass merely accessing or logging into an existing service. But it's very unclear why.

[00:01:53] Speaker 00:
The board adopted a construction of these terms. You can find the construction at Appendix 20 and 25.

[00:01:58] Speaker 01:
I definitely want to hear about your construction, but as a housekeeping matter, you started by saying that you wanted us to reverse. How would we reverse? If we agree with you that the board got the claim construction wrong, this is an obviousness case with tons of potential factual issues. How would we reverse as opposed to vacate and remand?

[00:02:18] Speaker 00:
Cisco only has one argument under our construction of the request to provision and activate terms, and that theory is that when Bodart, the virtual assistant, configures instant messaging or email to be available through the virtual assistant, that would qualify as a new service under our constructions. That theory fails as a matter of law because the claim requires that the second service be activated with the second provider, which is the underlying provider of the service, like Google for Gmail or AOL for AOL Instant Messenger.

[00:02:52] Speaker 00:
But in Cisco's alternate theory— The board didn't address any of this. That's correct. The board didn't address it. And if the court believes there's a factual issue there— then the court is free to vacate and remand for the board to address Cisco's alternate theory. We would be fine with that result. We think the record is clear that the theory fails as a matter of law, and so that's why we're asking for a reversal.

[00:03:12] Speaker 01:
You keep saying as a matter of law. I mean, it's the fact-finding. You're just saying that the facts are so overwhelmingly one-sided that you think the court should go ahead and make the fact-finding on appeal.

[00:03:21] Speaker 00:
Well, I say as a matter of law because I think the claim language forecloses their argument in that it requires that the second service be activated with the second provider, whereas in their alternate theory, the second service is being activated with the Bodart virtual assistant.

[00:03:40] Speaker 04:
Do you know of any cases that are similar to this one where our court has done what you're asking for? That is, go ahead, even though we think the claim construction is incorrect, we go ahead and then make a final conclusion on obviousness in an IPR proceeding.

[00:03:54] Speaker 00:
I'm not aware of, off the top of my head, of a case where the claim construction was vacated and a factual finding was made in the first instance, but there are several cases like Arendi and DSS technology, for example, where the court found that the board's analysis was wanting but said that there was only one reasonable view of the application of the art to the claim. That's pretty atypical, right? I think that's fair, that it is atypical.

[00:04:22] Speaker 04:
Do you want to talk about claim construction?

[00:04:24] Speaker 00:
Sure. So the board adopted the following construction of the provision and activate terms, which I want to point out is different from the construction that either party proposed in the proceedings below. The board's construction is, quote, It includes a request to add new applications and services or manage existing applications and services to which a client has already subscribed. Now, the board didn't explain precisely what it meant by that construction.

[00:04:57] Speaker 00:
It also didn't explain why Cisco's prior art satisfies that construction.

[00:05:02] Speaker 03:
And so as a result, the board didn't answer the... Okay, go ahead. Finish your sentence.

[00:05:09] Speaker 00:
The board didn't focus on the claim construction question that really matters here, which is do provision and activate encompass merely logging in to an existing service, which is how Cisco argued its case below.

[00:05:24] Speaker 00:
And to explain why that is sort of the crux of the dispute, I'll briefly recap the claims and Cisco's theory. So the claims require a telephone system with a server that receives a request to provision a service, like instant messaging or email, and then in response to that request activates the service and integrates the service with the user's telephone service.

[00:05:47] Speaker 04:
Can I ask you, what is your proposed construction plan?

[00:05:49] Speaker 00:
Our proposed construction is that the provision and activate terms involve a user request to add a new service, and that would include activating a new subscription or a new account for an existing service. So as long as the user is getting something that they didn't have before... that would qualify as provisioning or activating under our construction.

[00:06:10] Speaker 04:
So in other words, just to make sure I understand, you're saying under that definition, it would include activating a service that maybe the user was previously subscribed to, but not through this middleman service that's used in the, I want to make sure I use the right words.

[00:06:31] Speaker 00:
The virtual assistant?

[00:06:32] Speaker 04:
Yes, the virtual assistant.

[00:06:34] Speaker 00:
That, I think, would not qualify because if all the user is doing is logging into an existing account, like an existing AOL account, for example, through the virtual assistant, I think that's just using the pre-existing service. That wouldn't qualify as activating under our construction.

[00:06:52] Speaker 04:
So my understanding of yours was that you thought that the board erred by adding another language or manage existing applications and services to which a client has already subscribed.

[00:07:01] Speaker 00:
Am I right in that? Yes, that's correct.

[00:07:03] Speaker 04:
So, okay, so why did the board err in construing activate to include that phrase? Because – I'm looking at the plain plain language, the specification. What is your argument?

[00:07:15] Speaker 00:
Sure, because the patent does not support – reading these terms provision and activate to refer to services that the user already has, to refer to doing anything with services that the user already has.

[00:07:30] Speaker 04:
I want you to be more specific. Why? What language in the claim are you relying on? What part, I mean, what in this classification are you relying on?

[00:07:38] Speaker 00:
So one of the clearest points in the specification is column 9, lines 41 through 46. This is at appendix 88. And this is talking about the process for actually using a service. And it says a request by the first user to utilize the second service may be received. Then it says it may be assumed that the second service has already been activated. So the patent is setting forth an order of operations here. First, the service is activated. And that which is activated was not activated before.

[00:08:10] Speaker 00:
The user didn't have it before. And then after the service is activated, that's when the user logs into it, uses it, manages it. The terms access, utilize, manage, those are terms that the patent uses to refer to actions that are taken immediately. with respect to existing services, whereas when the patent uses words like activate or add or provision, it's talking about new services that the user did not previously had.

[00:08:41] Speaker 00:
You can see this, for example, at column 6, lines 45 to 62. That's at appendix 86. There's an explicit discussion of activating new services. There's a similar disclosure at column 7, lines 22 to through 26 at Appendix 87.

[00:09:00] Speaker 00:
And on top of that, at Appendix 86, Column 5, the patent explicitly equates activated services to ones that the user is subscribed to, and then inactive or deactivated services to refer to services that the user doesn't have anymore.

[00:09:18] Speaker 04:
So I've read the specification, and I've highlighted every time the word activate and provision is used, okay? Yeah. And there's one, I want to get your thoughts on one of them. I agree with you that the word is used quite a lot. Activate. Provision, not so much. But activate is used quite a lot, and every time it's used, it's used in the manner in which you were saying. But... There is one circumstance in column six, and actually a couple circumstances, where instead of just saying activate, the specification says over and over again, activate the new application, activate the new application.

[00:09:54] Speaker 04:
One implication of that could be that because they had to say the new application, the word activate is not so limited. And I just want to hear what your response is to that.

[00:10:04] Speaker 00:
I think that that would not be a reasonable inference to draw because... There's nowhere in the specification where it is implying in any other way that a service that the user already has is being activated. There's no embodiment described in this patent where it uses the word activate to describe a service that the user clearly already has. So the only way that one could get to a conclusion that activate encompasses existing services would be to draw a negative implication from the fact that in a couple of spots it says activate new applications And then in some spots, it just says activate applications without specifying new.

[00:10:53] Speaker 00:
I think that would be a very thin read on which to hang a claim construction.

[00:10:57] Speaker 04:
So is your view maybe that activate, when it's used later in the specification after saying activate the new applications, is just using a shorthand?

[00:11:05] Speaker 00:
Correct. I think the new part is implicit in the specifications, the descriptions elsewhere of what it means to activate a service. Yes.

[00:11:14] Speaker 04:
Is there any language in the claim that you would point to to support that activate can't mean just merely opening up or accessing?

[00:11:23] Speaker 00:
So I think I'd point to the other term that we've been discussing, which is provision. which is not explicitly defined in the patent, but it is defined in a dictionary that's in the record at Appendix 1898.

[00:11:35] Speaker 00:
And what this telecom dictionary says is that provisioning is, quote, the act of acquiring telecommunications service from the submission of the requirement through the activation of service. And then it goes on later to say that provisioning is synonymous with initiation. And so that is consistent with our view that when this claim is talking about provisioning and activating, you're talking about getting a new service that the user didn't have before.

[00:12:04] Speaker 04:
And we reviewed the board. The board did not find that dictionary definition to be dispositive of the issue, and it's extrinsic evidence, right? So I just want to ask you about the standard group review I provided that because I think that's extrinsic evidence, and I have to review that for substantial evidence. Do you agree?

[00:12:23] Speaker 00:
I agree that the court would review any findings based on extrinsic evidence for substantial evidence. However, the board didn't analyze this dictionary definition at all. It did cite it when it was recapping the party's arguments. It cited the definition. But when the board was actually analyzing the correct construction of the claim, the board didn't come back to the dictionary definition at all. It didn't interpret it. It didn't say we find this unpersuasive. And so I'd submit there is no factual finding based on extrinsic evidence to which this court— They found the opposite of what you wanted.

[00:12:54] Speaker 01:
They identified the extrinsic evidence in your favor but found the opposite.

[00:12:59] Speaker 01:
They didn't say that they— They didn't expressly articulate that we disagree with your dictionary, but they said there's a dictionary that says this. We conclude that the other constructions are right. So I'm missing the logical leap that you think needs to be present in the opinion.

[00:13:19] Speaker 00:
So the board's analysis on this point starts at Appendix 15. The board begins by recapping the party's arguments.

[00:13:30] Speaker 00:
The board says about a third of the way down, Appendix 18, petitioner argues that patent owner's only other evidence is a website definition for provisioning dated after institution of this proceeding. And then the board continues summarizing arguments. And then it does its own analysis. It never refers back to that dictionary definition. It never says we adopt petitioner's argument about that dictionary definition.

[00:13:58] Speaker 01:
But it concludes that the claim construction is not what you want it to be.

[00:14:02] Speaker 00:
Correct.

[00:14:03] Speaker 01:
So that's a determination.

[00:14:05] Speaker 00:
Yes, that is reviewed de novo. My point is there are no factual findings specifically based on this dictionary definition that would introduce any layer of substantial evidence review into the equation. That's my argument.

[00:14:21] Speaker 00:
I see that I'm well into my rebuttal time. If the court has any further questions, I'm happy to answer them. Otherwise, I will reserve the balance.

[00:14:29] Speaker 01:
Sounds good.

[00:14:30] Speaker 00:
Thank you.

[00:14:30] Speaker 01:
Okay. Ms. Liu, please proceed.

[00:14:42] Speaker 02:
Good morning. It may please the court. So to provide context for this claim construction issue, the prior art discloses an initial configuration of the virtual assistant to be able to access services like instant messaging and email by confirming login credentials. And so that is provisioning and activating for the first time in the telephone system. And that is what is required by the claim. And so Zilker here today proposes that the claim construction must include adding new services, and that is not supported by the claims or the specification.

[00:15:24] Speaker 02:
If we look at the language of Claim 1, it does not say new service. It says that the service is a second service.

[00:15:32] Speaker 04:
Can I ask you something? What is activate, then? I'm focusing on activate. Let's forget about provision for a minute, because I think activate is too hard of an argument. Sure. So activate. It says in the claim you're activating the second service, and then there's another limitation that says associating the second service with the first telephone number. I mean, so activating can't be associating, and associating has to occur after activating. I mean, I'm just wondering what meaning are you giving this word if it doesn't mean activating a new application?

[00:16:08] Speaker 02:
Sure. So activate would mean, like, to make available. So the request, obviously, is the request to make available, and the activating is actually making that service available somehow.

[00:16:21] Speaker 04:
Is that the construction you proposed before, to make available?

[00:16:25] Speaker 02:
I think the construction before was similar, like turn on or deactivate, That is obviously not the construction.

[00:16:37] Speaker 04:
I mean, you can't have a new construction now.

[00:16:38] Speaker 02:
It's adopted. Yeah.

[00:16:40] Speaker 04:
What was your construction below?

[00:17:09] Speaker 04:
Take your time.

[00:17:10] Speaker 01:
Your construction below is performing an action that causes the provider to deliver or provide a requested service.

[00:17:20] Speaker 02:
Yes. So, yes, I do see that right there.

[00:17:24] Speaker 01:
Thank you.

[00:17:24] Speaker 02:
And so, again, delivering or providing the requested service.

[00:17:30] Speaker 02:
And so, here, the...

[00:17:35] Speaker 02:
You know, the board construed the term to mean manage existing service, and manage existing service would encompass providing the or delivering the service that is, you know, activated for the first time in a telephone system.

[00:17:52] Speaker 04:
Does that make sense to manage and then associate the second service with the first telephone number? Is there anything to close in the specification about the order of those two steps?

[00:18:03] Speaker 02:
No.

[00:18:04] Speaker 04:
I don't see anything in the specification that teaches that. That's why I'm asking.

[00:18:08] Speaker 02:
Yeah, so I think there is nothing that directly addresses it in the way that we're looking for. I think the closest thing is in the discussion of Figure 8 at Column 10.

[00:18:21] Speaker 02:
That is the process of activating a service, and so it includes activating the service by sending information about the user to the second service and then setting up information to be able to allow the user to connect with the service and use that service in the future.

[00:18:46] Speaker 04:
And you're saying that's managing?

[00:18:49] Speaker 02:
So that would fall within the scope of managing because it's an existing service, but you are managing that service to be allowed to use with a new system.

[00:19:02] Speaker 04:
Now, do you agree this specification teaches activating and managing as being different things?

[00:19:08] Speaker 04:
I mean, throughout the specification, it does say manage, but it also says activate. And the figure that you're relying on, 8, is specifically for activating a service for a first user.

[00:19:20] Speaker 02:
So, yes, it does. The specification says at column 10 that the request to activate is performed by generating a request to log into the storefront. And we see in the specification at column 9, lines 9 through 20, that within the storefront, you can manage existing services and add new services.

[00:19:49] Speaker 02:
And so that would be within the scope of services that are available to activate within the storefront.

[00:19:58] Speaker 01:
The hard thing for me is the plain meaning of activate to me just implies something new, not just accessing an existing thing. Like I think about logging onto email, and I don't think that's the same thing as activating email. Activating an email is creating a new email account, but logging into email is accessing something. an email account. And so for me, it's a plain meaning thing. And by the way, I do feel a little bit sorry for you because the board pulled this out of thin air, this construction.

[00:20:29] Speaker 01:
Like, it came out of nowhere. Like, this was not your construction, and here you are having to defend it. So, you know, I get that. But to me, just the plain meaning of activating is I'm struggling to see that word the way the board saw that word.

[00:20:45] Speaker 02:
Sure. And so...

[00:20:47] Speaker 02:
to try to separate your question kind of into two points. First, you can activate an existing account. It is not limited to establishing a new account or a new subscription.

[00:20:59] Speaker 02:
For example, you could have an existing account that was deactivated, so then you would need to reactivate the account. You can also activate a service by allowing the service to be accessed within a new device. And when you're doing that, you're configuring the new device to be able to be used with that second service for the first time. So again, it's something that happens for the first time. That device isn't available to be used at first, and then you set it up so that it is available to be used later.

[00:21:36] Speaker 02:
Our position is not that merely logging in is activating. It is the process of configuring the telephone system in the prior art. It's a virtual assistant to be able to access the second service in the first instance.

[00:21:52] Speaker 04:
When I read the specification, there's examples where it's very clear that the word activate is very clearly referring to activating a new service, and it couldn't be anything else. It couldn't be read in any other way. And then there's some examples where maybe it could be read the way you were interpreting it, but it's not definitively so. I don't see a disclosure of a single embodiment in which the word activate is used to refer to just accessing something that the users already subscribe to.

[00:22:26] Speaker 04:
Am I missing anything?

[00:22:29] Speaker 02:
No, you're not missing anything. And I think there is an inference that you have to make when reading the claims and the specification. But the claims and specifications show that when the patentee was referring to a new service, it expressly said so. We see that in, for example, dependent claim four, where the patentee is specifically specifying a new service.

[00:22:56] Speaker 02:
And then we also see that in the embodiments that you are referring to, where the user is expressly reciting a new service.

[00:23:07] Speaker 02:
And just to note, the specification makes it really clear when it intends to be a new service. For example, at column seven, lines 24 to 26. It says, for the purposes of this discussion, it will be assumed that the subscriber has requested new services.

[00:23:25] Speaker 04:
But isn't, it's not, just going to your claim differentiation argument, you agree that it's not a strictly, it's not a perfect claim differentiation argument because of the fact that the claim is introducing a new concept, which is the United Storefront, right? Yes.

[00:23:44] Speaker 02:
Yes, I agree it's not a perfect claim differentiation argument, but what claims three and four show us is that they're parallel limitations. So in claim three, you have the storefront that allows you to manage existing services, and then in claim four, you have the storefront that allows you to add new services. And both of these claims are dependent on claim one, which shows us that the scope of services is existing services and new services.

[00:24:18] Speaker 04:
But there's no storefront in Claim 1.

[00:24:20] Speaker 02:
There is not a storefront in Claim 1, but at Column 10, Lines 12 to 17, it says that you request to activate in the storefront. And so that's the hook and the specification that ties the storefront to the request to activate and provision.

[00:24:39] Speaker 02:
Just...

[00:24:40] Speaker 02:
The extrinsic evidence also shows that the request to provision and activate can be an existing service. The board cited the deposition testimony of Zilker's expert, Dr. Mattissetti, where he testified that you could deactivate features or change features in an existing subscription. That is at Appendix 17, citing...

[00:25:07] Speaker 02:
Appendix 1444 to 45.

[00:25:11] Speaker 02:
And to quickly address the dictionary definition, the TIA glossary at Appendix 1898, that also supports the board's construction because... This is the provisioning definition. Yes, it's the provisioning definition. And it says that you can alter the state of an existing service. So it also says that. It doesn't say new service.

[00:25:34] Speaker 02:
If the court has no further questions, Cisco respectfully asks the court to affirm the board's decision.

[00:25:40] Speaker 01:
Thank you, Mr. Milliken. Thank you, Your Honors. I'll make...

[00:25:59] Speaker 00:
Three brief substantive points and one procedural point. 59 seconds.

[00:26:04] Speaker 01:
Go.

[00:26:05] Speaker 00:
Substantively first, I believe my friend stated that they were not arguing that merely logging in is activating. That definitively was their argument. You can see that clearly at Appendix 136 to 137.

[00:26:19] Speaker 00:
Second, my friend referred to Dr. Mattissetti's testimony in the dictionary definition and the reference to changing the nature of an existing service by, for example, adding features. That comfortably fits within our construction. We agree that Activate is broad enough to encompass adding new features to a service that the user already has because the user has something different. And Dr. Mattissetti was also very clear clear in his deposition testimony that he believed merely accessing or logging in would not qualify as activating it.

[00:26:50] Speaker 00:
Third, Judge Stoll, you pointed to another part of the claim that I want to emphasize that supports our construction. The last clause said, associate the second service with the first telephone number. If the service hadn't been already activated, it wouldn't need to be, or if the service wasn't new, it wouldn't need to be associated with the telephone number. Finally, I see I'm out of time, but if I may make one last point.

[00:27:15] Speaker 00:
My friend said that under the board's construction that encompasses managing existing services, she said that would encompass logging in. It's not at all clear to me why that's correct, and that goes to our APA argument that the board simply didn't explain the reasons for its conclusion here.

[00:27:33] Speaker 00:
Thank you, Your Honors.

[00:27:34] Speaker 01:
I thank both counsel. This case is taken under submission.