[00:00:00] Speaker 01: The Acceleration Bay versus Activision Blizzard. [00:00:56] Speaker 03: Good morning. [00:00:57] Speaker 03: Good morning. [00:00:58] Speaker 03: May it please the court, Aaron Frankel from Kramer-Levin on behalf of Acceleration Day. [00:01:04] Speaker 03: A port ordering algorithm must provide a sequence of port numbers. [00:01:11] Speaker 03: Smart Clients does not provide a sequence of port numbers, so reversal is warranted. [00:01:18] Speaker 03: Now, a port ordering algorithm. [00:01:20] Speaker 00: You argue, in the blue brick at 21, [00:01:24] Speaker 00: The specification describes precisely how the communications ports selected by the port ordering algorithm may be reordered by the seeking computer when determining the order in which to dial the ports of each portal computer, and you cite claim one and JA 112. [00:01:43] Speaker 00: Show me the specific language providing this description at no time. [00:02:05] Speaker 03: So in section 112, and ironically, this is the same language that both the board and the petitioner relied on as supporting their position. [00:02:17] Speaker 03: Section 112, I don't understand. [00:02:19] Speaker 03: I'm sorry, page 112 of the appendix. [00:02:21] Speaker 00: OK. [00:02:23] Speaker 01: So you're quoting from the specification. [00:02:26] Speaker 01: Yes. [00:02:28] Speaker 01: Which is not claim one. [00:02:33] Speaker 01: Claim one is not in. [00:02:35] Speaker 03: Well, the citation to the brief is both to the specification and to claim one. [00:02:42] Speaker 03: Claim one states that the port ordering algorithm identifies the call in port. [00:02:59] Speaker 03: So it's providing a series of ports. [00:03:02] Speaker 03: and that the communication ports may be reordered. [00:03:06] Speaker 03: So this is claim one, column 29, 40 to 45. [00:03:10] Speaker 03: There's more detail in the specification. [00:03:13] Speaker 03: And because a port ordering algorithm is not a term that's known in the art, we have to look to the specification to confirm what it actually is. [00:03:21] Speaker 01: OK, the quote is not from the claim. [00:03:24] Speaker 01: It's from the specification. [00:03:28] Speaker 00: I'm sorry, you're asking literally where the quote comes from? [00:03:31] Speaker 00: Yeah. [00:03:32] Speaker 00: Okay. [00:03:32] Speaker 00: I'm sorry. [00:03:33] Speaker 00: The specification describes precisely, you say, at 21 in the blue-brave, you say the specification describes precisely how the communications work. [00:03:44] Speaker 00: So show me where, you were in the specification at 112, show me where it says precisely how to do this. [00:03:59] Speaker 03: I'm going to ask my colleague to find the exact line on the page. [00:04:04] Speaker 00: I have some language highlighted, but it doesn't seem to do it for me. [00:04:07] Speaker 00: It's at the bottom of the column 11. [00:04:09] Speaker 03: I don't believe that the specification is very specific as to how the port ordering algorithm does what it does. [00:04:18] Speaker 01: Well, it's the sentence that Judge Wallach read that you wrote says, because the specification describes precisely how [00:04:28] Speaker 03: Yes. [00:04:29] Speaker 03: You know, frankly, I wouldn't have phrased that quite that way. [00:04:34] Speaker 03: Well, you made some briefs. [00:04:35] Speaker 00: Yeah. [00:04:36] Speaker 03: I mean, you wouldn't have. [00:04:38] Speaker 03: You did. [00:04:38] Speaker 03: Well, the point that we're making on appeal is that- Is what you say in the brief wrong? [00:04:48] Speaker 03: That's not an accurate statement. [00:04:50] Speaker 03: I'm sorry. [00:04:51] Speaker 03: That is not. [00:04:52] Speaker 03: That is not an accurate statement. [00:04:54] Speaker 03: What the specification makes very clear throughout [00:04:57] Speaker 03: is that a port ordering algorithm has to provide a sequence of port numbers. [00:05:04] Speaker 00: How is confining port ordering a logarithm to solely ordering ports by way of their port numbers the broadest reasonable construction, particularly when the illustrative claim language doesn't include any reference to port numbers? [00:05:21] Speaker 03: It is the only reasonable construction, and that is because [00:05:26] Speaker 03: Given that a port ordering algorithm is not a known term in the art, we would look to the specification where it defines exactly what the port ordering algorithm does. [00:05:36] Speaker 03: And it says that the port. [00:05:38] Speaker 03: Where are you? [00:05:40] Speaker 03: Column 1158 to 64. [00:05:43] Speaker 03: So first it identifies the problem. [00:05:47] Speaker 03: There are potentially 65,000 ports that a seeking computer could attempt to contact. [00:05:54] Speaker 03: And it says that dialing a port is a slow process. [00:05:57] Speaker 00: You're on appendix 112, column 11. [00:06:00] Speaker 03: 1158. [00:06:02] Speaker 03: So since the dialing of a port is a relatively slow process, it would take the seeking computer a long time to locate the calling port of a portal computer. [00:06:11] Speaker 03: That's the problem, the solution. [00:06:14] Speaker 03: To minimize this time, the broadcast technique uses a port ordering algorithm. [00:06:18] Speaker 03: That's the first time the term appears in the patent outside of the abstract. [00:06:23] Speaker 03: And it says, [00:06:24] Speaker 03: What does the port ordering do? [00:06:26] Speaker 03: It identifies the port number order that a portal computer should use. [00:06:32] Speaker 00: And one embodiment uses a hashing algorithm to identify the port order. [00:06:38] Speaker 03: That is a specific example of how the algorithm could be used. [00:06:45] Speaker 03: And that's what my colleagues must have been referring to on page 21. [00:06:49] Speaker 03: It's not the only embodiment for port ordering algorithm, but a hashing algorithm [00:06:54] Speaker 03: could be used to generate the sequence of port order numbers. [00:06:58] Speaker 03: But the only references in the specification to the port ordering algorithm are generating a series of port numbers. [00:07:07] Speaker 03: The whole point of this invention is there's a very large universe of potential ports you could connect to. [00:07:15] Speaker 03: There's 65,000, and it takes computer time [00:07:20] Speaker 03: It's a slow process to contact a port. [00:07:23] Speaker 03: So you want an algorithm that will give you a meaningful sequence of port numbers. [00:07:29] Speaker 03: There is nothing in the specification that talks about the algorithm generating a sequence of portal computers to contact. [00:07:39] Speaker 00: Now, the reference- Before we leave port ordering a logarithm, since you seem to be headed for portal computers, [00:07:46] Speaker 00: You argue that we should find some of Activision Blizzard's arguments waived in 45, 46 of the blue break. [00:07:54] Speaker 03: That's correct. [00:07:55] Speaker 00: Wasn't your motion to exclude those arguments before the PTAB denied? [00:07:59] Speaker 03: The motion was denied. [00:08:01] Speaker 00: Then how were the arguments waived? [00:08:03] Speaker 03: We submit that the PTAB was confused. [00:08:07] Speaker 00: No, no. [00:08:08] Speaker 00: How were the arguments waived if the PTAB rolled in their favor? [00:08:15] Speaker 03: Activision waived the argument by not addressing it until the final reply brief in the case. [00:08:21] Speaker 03: So they're not permitted to raise a new argument in the final reply brief. [00:08:25] Speaker 02: So you want us to determine that there was a procedural waiver when the board found there wasn't? [00:08:33] Speaker 02: Correct. [00:08:34] Speaker 03: It's not necessary to reverse the decision here, but we think that the board abused its discretion. [00:08:41] Speaker 03: In the initial petition, [00:08:43] Speaker 03: all the way until the reply brief. [00:08:46] Speaker 03: The position that Activision took is that a port ordering algorithm generates a sequence of port numbers. [00:08:53] Speaker 02: Okay, but that's not entirely the case with respect to all embodiments. [00:08:58] Speaker 02: If you look at column 12, line 49, it says in an alternate embodiment, the seeking computer selects a port number [00:09:09] Speaker 02: according to the algorithm, and dials each portal computer at that port number. [00:09:16] Speaker 03: Yes, and that's the language that the board relied on and that activism relied on. [00:09:21] Speaker 03: What's critical is the very next sentence. [00:09:24] Speaker 03: It says that if no acceptable call-in port is found, then the seeking computer selects the next port number and repeats the process. [00:09:33] Speaker 03: So in that embodiment, the algorithm [00:09:36] Speaker 03: generates a sequence, let's say port 80, port 120, port 150. [00:09:41] Speaker 03: That's the sequence. [00:09:44] Speaker 03: It starts at the first portal computer and tries 80. [00:09:47] Speaker 03: It goes to the second and tries 80. [00:09:49] Speaker 03: It goes to the third and tries 80. [00:09:51] Speaker 03: Then the port ordering algorithm says the next one to try is 100. [00:09:56] Speaker 03: And it goes to each of them. [00:09:58] Speaker 03: 120. [00:09:58] Speaker 03: Or 120, whatever. [00:09:59] Speaker 03: But the point is that the output of the algorithm [00:10:04] Speaker 03: is a sequence of port numbers. [00:10:07] Speaker 03: If an algorithm does not at least give a sequence of port numbers, it cannot be a port ordering algorithm. [00:10:15] Speaker 03: It's defined explicitly in the passage. [00:10:19] Speaker 03: It says, what is a port ordering algorithm? [00:10:21] Speaker 03: It gives you a sequence of port orders. [00:10:24] Speaker 03: And the only language in the specification that the board relied on and that Activision relied on [00:10:32] Speaker 03: actually supports our position. [00:10:34] Speaker 03: They just omit the critical second sentence. [00:10:39] Speaker 03: So turning to smart clients. [00:10:42] Speaker 03: Smart clients says, we're going to generate an algorithm for telling you which server to connect to. [00:10:51] Speaker 03: Smart clients says nothing about selecting port numbers. [00:10:56] Speaker 00: Doesn't the ordering of sockets necessarily entail the ordering of port numbers? [00:11:01] Speaker 00: since a socket is a paired address and port? [00:11:05] Speaker 03: Not as implemented in Smart Clients. [00:11:07] Speaker 03: So I would direct your attention to Appendix 1238. [00:11:18] Speaker 03: Now, the way a client using Smart Clients seeks to connect to the servers, it gets a certificate. [00:11:27] Speaker 03: And the certificate says, here are the servers that are available to you. [00:11:31] Speaker 03: And if you look on that page of the appendix, the servers are identified without any port numbers. [00:11:38] Speaker 03: So there's just a list of server names. [00:11:41] Speaker 03: The algorithm in smart clients says, contact this server first, then this server, then this server. [00:11:48] Speaker 03: That's the only output of the algorithm. [00:11:52] Speaker 03: After that server is identified, when the client attempts to contact the server, it says, OK, [00:12:00] Speaker 03: I'm going to use the HTTP protocol, so I know that I'm going to use port 80 to connect. [00:12:09] Speaker 03: So it appends the port number to the server. [00:12:13] Speaker 03: But the algorithm in smart clients does not identify the port number. [00:12:19] Speaker 03: The output is only the server. [00:12:21] Speaker 03: It provides a list of servers, and then the client knows to add the single [00:12:28] Speaker 03: port number that's used for all the servers, but that's not done by the algorithm. [00:12:33] Speaker 03: So the algorithm does not provide any port numbers. [00:12:37] Speaker 03: That's why reversal is warranted. [00:12:39] Speaker 03: And VDOT has no impact on that. [00:12:43] Speaker 00: The board and... You don't even seem to acknowledge VDOT on appeal. [00:12:49] Speaker 00: Well, it's... It's not in your blue brief, is it? [00:12:55] Speaker 03: I believe it was... [00:12:57] Speaker 03: discussed briefly in the blue brief, but certainly it's discussed in the reply brief. [00:13:03] Speaker 03: But there's only a single sentence that's relied on in VDOT. [00:13:09] Speaker 03: All it says is the URL naming convention of appending a colon plus a port number is maintained for naming servers running on non-standard ports. [00:13:19] Speaker 03: That's the entirety of VDOT that is relied upon. [00:13:22] Speaker 03: Do you consider that relevant? [00:13:24] Speaker 03: It is not relevant. [00:13:26] Speaker 03: All that that means is that smart clients, the chat function, works on HTTP. [00:13:34] Speaker 03: So when the server is identified by the algorithm, the client knows to add port number 80. [00:13:40] Speaker 03: All that that sentence in VDOT says is, if you're running a different application, not the chat function, maybe it's, say, a weather service, instead of port 80, you might append port 400. [00:13:53] Speaker 03: But that's done after the algorithm selects the server. [00:13:57] Speaker 03: There was nothing in VDOT that says that the port numbers for the servers can vary from server to server, and certainly nothing that says that the algorithm that is selecting the servers knows or has anything to do with the port numbers. [00:14:12] Speaker 01: OK, you're into your rebuttal, so I'm going to get from the other side, and we'll save the remaining time. [00:14:17] Speaker 03: Thank you. [00:14:28] Speaker 04: Good morning. [00:14:28] Speaker 04: Good morning. [00:14:29] Speaker 04: May it please the court? [00:14:30] Speaker 04: Andrew Sommer on behalf of the Appellees. [00:14:32] Speaker 04: I'm going to focus today on the court ordering algorithm as the appellant focused on that particular issue. [00:14:40] Speaker 04: There are two things of note here. [00:14:41] Speaker 04: I think one is the claim language. [00:14:43] Speaker 04: We need to start with the claim language when we decide what a court ordering algorithm means in the context of claim one. [00:14:49] Speaker 04: And in the context of claim one, we note that there is no [00:14:53] Speaker 04: proper or any kind of suggestion that there are this broad universe of ports for each portal computer. [00:14:59] Speaker 04: In fact, the claim belies that argument. [00:15:02] Speaker 04: It says providing an identification of a portal computer or a plurality of portal computers. [00:15:07] Speaker 04: Cite your record. [00:15:10] Speaker 04: Oh, yes. [00:15:11] Speaker 04: Sure, Your Honor. [00:15:13] Speaker 04: This is appendix page 121, claim one. [00:15:19] Speaker 04: Line or column 29. [00:15:23] Speaker 04: Yes, it's column 29, lines 28 to 30 is around where I am, Your Honor. [00:15:29] Speaker 04: The portal computer or the plurality of portal computers having a communications port, one port, or a plurality of ports. [00:15:38] Speaker 04: So this claim covers an instance in which a portal computer can have only one allocated port. [00:15:44] Speaker 04: TCPIP, which is recited in some of the dependent claims, [00:15:49] Speaker 04: Particularly if you see claim 16, which depends on a non-asserted claim in this particular case, suggests that TCPIP is one form of a protocol that could be used here. [00:16:00] Speaker 04: And yes, as counsel noted, that has 65,000 some-odd ports, and you would need to do this searching. [00:16:06] Speaker 04: Claim 9 also discusses dynamic allocation of ports. [00:16:10] Speaker 04: Again, claim 9 is not before the court. [00:16:12] Speaker 04: That concept is missing entirely from claim 1. [00:16:16] Speaker 04: Claim 1 was drafted in a way to be extremely broad. [00:16:19] Speaker 04: Claim one was drafted in a way to cover an instance in which each portal computer, a number of portal computers are allowed, and they each have a single port that is allocated. [00:16:30] Speaker 04: And in that circumstance, based on the plain language of the claim, that communications port is the call-in port. [00:16:37] Speaker 04: And so what does Smart Clients show? [00:16:39] Speaker 04: Smart Clients shows an instance in which services, service-specific hosts, are reordered. [00:16:47] Speaker 04: And what does that mean in the context of smart clients? [00:16:50] Speaker 04: Smart clients discloses that various applications can be run on these smart clients. [00:16:54] Speaker 04: One is FTP, one is Telnet, and another one is the internet chat. [00:16:59] Speaker 04: And that's what the issues before the board focused on was this chat application. [00:17:03] Speaker 04: And chat was run on HTTP as described in smart clients. [00:17:07] Speaker 04: HTTP is allocated to standard port 80. [00:17:09] Speaker 04: That's described in the patent itself and discussed by the experts. [00:17:13] Speaker 04: Both experts agree. [00:17:14] Speaker 04: It's on port 80. [00:17:16] Speaker 04: But when you take that disclosure in view of a DOT, which says you can implement a smart client on a non-standard port, you can reach a conclusion that it would have been obvious to do so, just like our expert explained at appendix 1097 and 1098, that you could implement each smart client on a different non-standard port, such that when you order the servers and the services, you also have to reorder the ports. [00:17:44] Speaker 04: You have to do that because, [00:17:46] Speaker 04: ports are used to gain access to individual applications running on your computer. [00:17:51] Speaker 04: If you think of it like this, you may have a browser window open on your computer. [00:17:56] Speaker 04: You may also be using email. [00:17:58] Speaker 04: Those two applications are attached to separate ports in your computer. [00:18:02] Speaker 04: Communications inbound to your email are not coming through your web browser. [00:18:05] Speaker 04: They're not coming through HTTP. [00:18:07] Speaker 04: The same thing applies when you use these non-standard ports. [00:18:10] Speaker 04: They attach to a port. [00:18:12] Speaker 04: Therefore, if you reordered the servers without reordering the ports, [00:18:15] Speaker 04: you would not be able to find the application, the chat application, in smart clients. [00:18:20] Speaker 04: Therefore, we submit that there actually is substantial evidence. [00:18:23] Speaker 04: There is evidence that supports the notion that ports are reordered when the smart client's application reorders and orders the servers according to load. [00:18:37] Speaker 04: Regarding the issue of waiver, I just want to briefly mention that. [00:18:43] Speaker 04: There was an argument in reply that the board was confused and that their argument was improperly viewed as pertaining only to exhibit 1024. [00:18:52] Speaker 04: There's actually two rationales in the board's opinion at appendix 862. [00:18:57] Speaker 04: The second rationale was, to the extent that you want us to exclude these other portions of the reply, patent owner, you haven't explained why. [00:19:06] Speaker 04: And that was our point. [00:19:08] Speaker 04: But in any event, it was directly responsive. [00:19:10] Speaker 04: This argument is all about the plain language of the claim. [00:19:13] Speaker 04: What the claim says and why their argument that you can only order ports or that an algorithm that orders a URL plus a port cannot be a port ordering algorithm is actually belied by the language of the claim. [00:19:27] Speaker 04: So too is the argument made by the appellant in this particular case that there must be multiple ports on each portal computer that need to be individually reordered. [00:19:38] Speaker 04: The claim suggests to the contrary. [00:19:41] Speaker 04: And we think that the claim language controls. [00:19:44] Speaker 04: So unless Your Honors have any other questions about any other parts of the appeal, I'll cede the rest of my time. [00:19:48] Speaker 02: Thank you. [00:19:49] Speaker 04: Thank you very much. [00:19:49] Speaker 03: Very quickly, Your Honors. [00:20:01] Speaker 03: There is nothing in smart clients, or VDOT for that matter, about reordering the courts that are used for different competing services. [00:20:09] Speaker 03: That concept isn't in there. [00:20:11] Speaker 03: And that's entirely important. [00:20:12] Speaker 03: There's no citation in any of the briefing or the record to that concept being found in smart client server dots. [00:20:19] Speaker 03: So what we're left with is the purpose of smart clients. [00:20:26] Speaker 03: And what it does is it generates a list of servers. [00:20:30] Speaker 03: There's no port information even associated with that. [00:20:34] Speaker 03: And then after the algorithm generates the list of servers, the predefined single port number is added. [00:20:40] Speaker 03: In the claim language itself, the wherein clause at the end says that the communication ports can be reordered. [00:20:50] Speaker 03: Ports is multiple. [00:20:52] Speaker 03: So there have to be multiple ports that can be reordered. [00:20:56] Speaker 03: And if you look in the file history at the evolution of the claim, it was originally drafted only with communication ports. [00:21:05] Speaker 03: There was a 112 rejection. [00:21:08] Speaker 03: where the examiner said some of the dependent claims refer to a particular court. [00:21:16] Speaker 03: And then there was an amendment of one or more courts. [00:21:20] Speaker 03: And the purpose of that amendment was to resolve that 112 objection by giving an antecedent basis for the subsequent discussion of the single court. [00:21:31] Speaker 03: Where's that in the record? [00:21:33] Speaker 03: It's Appendix 946. [00:21:34] Speaker 03: OK, thank you. [00:21:36] Speaker 03: And that's the rejection. [00:21:39] Speaker 03: And then Appendix 963 is the amendment. [00:21:44] Speaker 03: And also Appendix 945 explains the basis for the amendment. [00:21:49] Speaker 03: Are there any questions I should address? [00:21:53] Speaker 01: Thank you.