[00:00:02] Speaker 01:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:06] Speaker 01:
God save the United States and this honorable court.

[00:00:11] Speaker 05:
The first case for argument this morning is number 191881, security profiling versus trend micro.

[00:00:20] Speaker 05:
Mr. Milliken, whenever you're ready.

[00:00:25] Speaker 03:
Thank you.

[00:00:27] Speaker 03:
Good morning, your honors, and may it please the court.

[00:00:30] Speaker 03:
Trend Micro's own admissions and the board's own analysis confirm that the provisional to which the 644 patent claims priority provides written description support for the user option limitation of claim one.

[00:00:45] Speaker 03:
Trend Micro concedes that the provisional discloses at least two types of user selectable occurrence mitigation actions, patching and policy selection.

[00:00:57] Speaker 03:
And the board's conclusion that the provisional discloses only automated remediation is therefore, by Trend Micro's own admission, incorrect.

[00:01:08] Speaker 05:
And the board's conclusion... Let me just ask you about that.

[00:01:12] Speaker 05:
Leaving aside for a moment this question about automating and not automating, how does the patching or policy selection that you referred to provide a basis for

[00:01:24] Speaker 05:
this question of whether user-selected options were firewall-based or IPS-based.

[00:01:33] Speaker 03:
So two points in response, Your Honor.

[00:01:36] Speaker 03:
First of all, the board decided that the 644 patent couldn't claim priority to the provisional solely on the basis that the provisional didn't disclose any kind of user option.

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And so it didn't reach the further question

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of whether the provisional provides support for a firewall-based or IPS-based occurrence mitigation type.

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And so we'd submit that that question should be resolved by the board on remand, not by this court in the first instance.

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However, the provisional does disclose firewall-based and IPS-based occurrence mitigation types.

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And the reason is

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The board construed a firewall-based or an IPS-based occurrence mitigation type to be an occurrence mitigation action that is, quote, performed by an IPS or a firewall.

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And so it doesn't have to be the type of occurrence mitigation that a firewall or an IPS typically does.

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It just has to be an occurrence mitigation action that is carried out

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through a firewall or an IPS.

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And Trend Micro asked for this construction below, and the board adopted it.

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And Trend Micro presumably did so because that fits with Trend Micro's obviousness arguments.

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Now on appeal, Trend Micro appears to be suggesting that the IPS-based or the firewall-based user option

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has to be the type of occurrence mitigation action that's typically performed by a firewall or an IPS.

[00:03:23] Speaker 03:
But that's simply not consistent with the board's claim construction.

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And that's the claim construction that Trend Micro asked for and that Trend Micro got.

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And there's actually a very good reason to construe the claims in that way.

[00:03:39] Speaker 03:
If you look at dependent claim 12 of the patent,

[00:03:44] Speaker 03:
which is found at Appendix 97.

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Claim 12 depends from Claim 1.

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And it recites a first occurrence mitigation action of the firewall-based occurrence mitigation type, including at least one of setting a configuration option, setting a policy, or an installation of a patch.

[00:04:09] Speaker 03:
And so this dependent claim shows that while a patch isn't

[00:04:13] Speaker 03:
For example, a patch isn't necessarily a firewall-based or an IPS-based occurrence mitigation action, but it can be if it's performed by a firewall or an IPS.

[00:04:25] Speaker 03:
And the provisional discloses this sort of occurrence mitigation action.

[00:04:31] Speaker 05:
For example, if you look at a 10-minute... I just need to interrupt you for a second because maybe you can help me out here.

[00:04:37] Speaker 05:
I'm seeing that argument made in gray, but I guess I'm not really finding it to be an argument that you included in blue.

[00:04:47] Speaker 05:
So if I'm missing something, can you just direct me to that argument in your blue brief?

[00:04:55] Speaker 03:
Of course.

[00:04:56] Speaker 03:
So at page 24 of the blue brief, after

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Arabic numeral 2, the Blueberry states, the program's intelligent IPS, which is an intrusion prevention system, allows the system administrator to use the IPS console to remotely patch targeted vulnerabilities in one click.

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And so this is an example of an IPS-based occurrence mitigation action.

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The system is using the IPS's functionality to install a patch after the system

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has automatically dropped or blocked a problematic connection.

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And then the blue brief goes on at page 26 after numeral four.

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The brief notes that the provisional also describes additional functionality that can be independently provided by firewall or an IPS.

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And so the point is, as long as the occurrence mitigation functionality

[00:06:05] Speaker 03:
is provided by the firewall or the IPS as opposed to some other aspect of the system, that's enough to make it a firewall or an IPS-based occurrence mitigation type under the board's construction.

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And I would note in this regard that at page 7 of the red brief,

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The Trend Micro admits that the provisional discloses this functionality where the IPS allows the user to install an update or patch after a connection is automatically dropped.

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And again, under the claim construction that Trend Micro asked for and the board adopted, that's all that is necessary to have an IPS-based user option.

[00:07:01] Speaker 03:
And if I could go back for just one moment to the procedural point, which is that the board didn't actually reach this question about whether any user options described in the provisional application are of an IPS-based or a firewall-based type, because the board concluded that the provisional didn't disclose any type of user-selected occurrence mitigation.

[00:07:29] Speaker 03:
The board found that

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the provisional discloses only automated occurrence mitigation apparently on the basis that the board thought apparently that the two types of occurrence mitigation were mutually exclusive.

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And that's simply not true.

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Trend Micro admits at pages 7 to 8, 12 to 13, 22 to 23, 28 to 29, and 33 to 34,

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that the provisional discloses at least some types of user selected occurrence mitigation, namely patching and policy settings.

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And so that in itself is enough to decide this appeal because the ground on which the board relied to conclude that the 644 patent can't claim priority to the provisional is by Trend Micro's own admission clearly incorrect.

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And the board's analysis is also, or the board's conclusion on the priority issue is also refuted by its own analysis of the Gupta reference.

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The Gupta reference discloses a response processor that is, in the first instance, configured by a system administrator, and the response processor then automatically responds to specific attacks.

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The board found, at appendix 50,

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that this is a disclosure of a user option.

[00:08:58] Speaker 03:
Well, the provisional discloses in substance the same functionality.

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The SIS update feature described in the provisional, which is described as Appendix 1575 to 1576 and 1579, shows that the administrator uses a management console to set certain policies that once set

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automatically remediate specific vulnerabilities.

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And so, if Gupta discloses a user option, then the provisional does too.

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And the board's conclusion otherwise is internally inconsistent and therefore arbitrary and capricious under the APA.

[00:09:43] Speaker 05:
Now, I'll say... Can I ask you just... Just as an aside, I'm looking at blue and gray.

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And with regard to the relief thought, Gray says vacate the board's holding that they're not entitled.

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I mean, my after-treatment proceeding.

[00:10:00] Speaker 05:
And then, Glue, you ask for a reversal, that the board's determination are not challenged to claim priority.

[00:10:08] Speaker 05:
What's the difference between the two?

[00:10:10] Speaker 03:
No substantive difference was intended, Your Honor.

[00:10:15] Speaker 03:
Well, I thought you started it.

[00:10:18] Speaker 05:
I thought you started by sort of suggesting in a minimum you'd require a remand for the board to consider these other issues that we were discussing about five minutes ago.

[00:10:28] Speaker 03:
Well, so I think I'm sorry, Your Honor, we finished the question.

[00:10:33] Speaker 03:
Please, please.

[00:10:34] Speaker 03:
I'm sorry.

[00:10:36] Speaker 03:
So the the court would be entitled to decide that the provisional

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discloses a firewall-based or an IPS-based user option, and that would require a reversal of the board's priority determination in its entirety.

[00:10:58] Speaker 03:
However, the request in the blue brief reversal meant a reversal specifically on the issue of whether the

[00:11:07] Speaker 03:
a provisional discloses a user option of any kind.

[00:11:12] Speaker 03:
So the court could either reverse the board's conclusion on that narrow issue, vacate the decision, and then leave everything else for the board on remand, including whether the provisional discloses an IPS-based or a firewall-based user option, or the court could go ahead and decide that the provisional does disclose a firewall-based or IPS-based user option, which would

[00:11:38] Speaker 03:
necessitate a reversal on the entirety of the priority issue.

[00:11:41] Speaker 03:
But regardless, there's going to have to be a remand.

[00:11:45] Speaker 04:
Excuse me.

[00:11:46] Speaker 04:
This is Judge Stoll.

[00:11:47] Speaker 04:
I just have a question, a follow-up question.

[00:11:50] Speaker 04:
Is there some place in your blue brief where you refer to remand anywhere?

[00:12:00] Speaker 03:
Well, Your Honor, the remand is going to be

[00:12:05] Speaker 03:
Yes, at page 41 of the blue brief, the release thought is that the court reversed the board's determination that the claims are not entitled to claim priority to the provisional and to remand the case for further proceedings.

[00:12:22] Speaker 03:
And the reason is no matter how the court resolves

[00:12:26] Speaker 03:
the priority issue, remand is going to have to be required because there's a prior invention, a swearing back issue that the board didn't reach.

[00:12:35] Speaker 03:
And so that's something that the board would need to deal with on remand no matter how, how this case was resolved.

[00:12:42] Speaker 05:
Let's clarify this because this is where I started and I was confused then and I'm not any less confused now.

[00:12:49] Speaker 05:
I thought you were, you took the position in your reply brief at least.

[00:12:53] Speaker 05:
that the board needs to be remanded because the board didn't reach the question of whether or not any user-selected options were firewall-based or IPS-based.

[00:13:06] Speaker 05:
Wasn't that the position you took in the reply, or did I misunderstand you?

[00:13:10] Speaker 03:
No, that is correct.

[00:13:12] Speaker 03:
The board did not reach that question.

[00:13:16] Speaker 03:
Our point is that because this is an appeal for an agency, it would not be proper for the court to affirm on that issue that the board didn't reach.

[00:13:29] Speaker 03:
However, because it has been briefed, the court could decide that issue in our favor, which would mean that the board's priority determination

[00:13:39] Speaker 03:
would need to be reversed in its entirety.

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And so the remand would be to consider the swearing back issue that the board didn't consider because of its determination on the priority issue.

[00:13:56] Speaker 05:
So any of my colleagues have anything further?

[00:13:58] Speaker 04:
I think I heard you, Tom.

[00:13:59] Speaker 05:
Just still?

[00:14:01] Speaker 04:
No, I don't have further questions.

[00:14:03] Speaker 05:
OK.

[00:14:04] Speaker 05:
All right.

[00:14:05] Speaker 05:
Well, why don't we reserve the remainder of your rebuttal and hear from the other side?

[00:14:10] Speaker 05:
Thank you, Your Honor.

[00:14:14] Speaker 02:
Good morning, Your Honors.

[00:14:15] Speaker 02:
This is George Rakowsky on behalf of Affiliate Trend Micro.

[00:14:21] Speaker 02:
Substantial evidence supports the BTAF's finding that Pellant failed to meet its burden to show the provisional provides written description support for the user option element.

[00:14:34] Speaker 02:
Appellant's argument on appeal is not much more than attempt to seek this de novo review, really a do-over on the false premise that the PTAP ignored appellant's arguments.

[00:14:48] Speaker 05:
Nothing could be further... Well, why don't you show me... I'm sorry to interrupt, but why don't you... I mean, this goes to the point we were discussing with your friend.

[00:14:56] Speaker 05:
Given the Board's... Board based its reasoning on the provisional disclosing only the automatically performed action,

[00:15:03] Speaker 05:
Why would we not have to vacate and remand for the board to consider that issue without that misconception?

[00:15:13] Speaker 05:
We were discussing earlier about the fireball-based or IPS-based options.

[00:15:22] Speaker 02:
Right.

[00:15:22] Speaker 02:
Well, I would phrase it, Your Honor, as there's a misconception here, and really that their argument, the felon's argument, misstates the PTAS findings.

[00:15:34] Speaker 02:
As it relates to the invention and the provisional disclosure of the invention.

[00:15:41] Speaker 02:
The PTAP found, again, as your honor pointed out with respect to the user-selectable options, that those user-selectable options were all automated.

[00:15:51] Speaker 02:
And nothing is incorrect about those findings.

[00:15:53] Speaker 02:
The PTAP found that the functions SP identified and argued at the PTAP and in the blue brief as comprising the user option are automated and fail to satisfy the user option element.

[00:16:05] Speaker 02:
That's clear from A to B. I'm sorry to interrupt.

[00:16:08] Speaker 05:
Could you keep your voice a little lower?

[00:16:11] Speaker 05:
I'm getting an echo because you're speaking too loudly, which is not your fault.

[00:16:14] Speaker 05:
It's just the nature of this conversation.

[00:16:17] Speaker 02:
It's all right.

[00:16:17] Speaker 02:
I apologize, Your Honor.

[00:16:19] Speaker 02:
That's A14 through 16.

[00:16:21] Speaker 02:
If you look at that, it's an important distinction.

[00:16:24] Speaker 02:
And it's a reflection of what the parties argued and what the evidence before the PTAB showed.

[00:16:31] Speaker 02:
And so while, as we reflected in our brief, there may be

[00:16:36] Speaker 02:
user, you know, options and in some ways, you know, I would say that both those patch and policy options are obtuse with respect to what they even disclose with respect to, you know, the patch and the fact that there can be some deployment of it.

[00:16:55] Speaker 02:
There's no description in the provisional as to how it's deployed.

[00:16:59] Speaker 02:
And then there is a description of a policy that's set at the outset, as we set policies for the federal circuit, for example, as to who has access to what.

[00:17:10] Speaker 02:
That's not a user-selectable mitigation action using diverse mitigation types.

[00:17:17] Speaker 02:
And when the then PTAB finds on A20 that they find that there is no user-option description for limitation 1G,

[00:17:29] Speaker 02:
You know, it's kind of a red herring when we say we need not address whether the firewall and intrusion protection options of limitation 1G are described because they found the genus as not being disclosed, the user selectable options for any type of mitigation actions are not disclosed.

[00:17:48] Speaker 02:
And yet, at that point, there of course cannot be firewall or IPF user selectable options because there is no type.

[00:17:56] Speaker 02:
everything in the provisional application that is described, and we can go through the citations of the provisional application, is the invention itself, the sysupdate invention, is automated.

[00:18:11] Speaker 02:
And the fact that within the prior art, within the knowledge of one's skills, there could be knowledge that certain things could be done with user involvement doesn't address whether it is part of the

[00:18:25] Speaker 02:
claimed invention.

[00:18:26] Speaker 02:
So at best, even if the PTAB could be faulted for finding that every function in the provisional was even automatic, and those findings may, even if they were incorrect, the error would be harmless because the function SP now argues on appeal, one, weren't adequately developed and argued to the PTAB, first of all, as the record shows and as we briefed, and two, regardless, the PTAB's finding is still correct because those passion policy functions do not comprise

[00:18:55] Speaker 02:
the language of the claim, code for providing a user with one or more options to selectively utilize different occurrence mitigation actions of diverse mitigation types.

[00:19:05] Speaker 02:
And that's clear from the order.

[00:19:06] Speaker 02:
Thus, to the extent there is any technical inaccuracy, as I argued, I don't think there is one, it's harmless error.

[00:19:14] Speaker 02:
And cases such as the event versus alarm, 741 FX, 786, 792 would tell us

[00:19:23] Speaker 02:
That it's of no import because it doesn't relate to the claimed invention.

[00:19:27] Speaker 02:
It doesn't really the fact that there are these items which may be user selectable.

[00:19:34] Speaker 02:
I'm sorry.

[00:19:35] Speaker 02:
Excuse me.

[00:19:36] Speaker 02:
User driven may be user driven in some way, which is

[00:19:40] Speaker 02:
Not clear, concise, and described in the way the area requires from a 112 perspective that the inventor was in possession of the invention at the time of filing of the provisional, and that's exactly the point of the PTAB.

[00:19:58] Speaker 02:
that that's very different than what is required.

[00:20:04] Speaker 02:
And I can answer, you know, after it relates to Gupta, as we heard about Gupta from the afternoon.

[00:20:13] Speaker 05:
Let me ask you to keep your voice at a lower the decibel level of your voice, please.

[00:20:19] Speaker 02:
Okay, applause.

[00:20:20] Speaker 02:
Apologies, Your Honor.

[00:20:22] Speaker 02:
But it's very different than what comes through in the Gupta disclosure and the context in which the PTOP was analyzing that, where that was a 103 analysis versus a 112 analysis.

[00:20:36] Speaker 02:
And we're analyzing things under, you know, KSR and whether something could be obvious to one of ordinary skills.

[00:20:43] Speaker 02:
And again, in the same way that we kind of have a misrepresentation of really the findings of the PTAB with respect to its ultimate determination on written description from A14 through A17, the findings on A50 as it relates to GUPTA are taken out of context, where the primary driver for the PTAB with respect to GUPTA was that the GUI interface, or VIZ, discloses the user option element,

[00:21:10] Speaker 02:
It is only after doing so, if you look at 850, that the Nielsen Declaration was pointed to, and it was pointed to that Gupta provides user options by signing to paragraph 191.

[00:21:24] Speaker 02:
If we look at paragraph 191 of the Nielsen Declaration, we will see that in that paragraph, that is just an obviousness combination of Gupta and Girard

[00:21:38] Speaker 02:
It is not the response processor or a citation to the response processor.

[00:21:43] Speaker 02:
It's in and of itself.

[00:21:45] Speaker 02:
That's a misstatement by the applicant, by the appellant, and that's on A834, Your Honors.

[00:21:54] Speaker 02:
And it was really this teaching coupled with Gerard's firewall rendered the claim obvious.

[00:21:59] Speaker 02:
It's only next sentence of A50 that they said the testimony in part of Dr. Nielsen teaching of the response processor

[00:22:08] Speaker 02:
supports their arguments, but didn't say it equates with the user option, it is the user option.

[00:22:14] Speaker 02:
Again, that's a creation of appellant with respect to that.

[00:22:19] Speaker 02:
paragraph on 191, and so there was no equating there.

[00:22:22] Speaker 02:
So there's no arbitrary and capricious nature.

[00:22:25] Speaker 02:
We're doing this in the context of 103.

[00:22:27] Speaker 02:
We're doing this in the context of obviousness.

[00:22:29] Speaker 02:
We're doing this in the context of Gupta in combination with Girard and what it can disclose.

[00:22:34] Speaker 02:
And the fact that at first point they highlight or not even from Dr. Nielsen's declaration

[00:22:40] Speaker 02:
And that's very, again, different.

[00:22:42] Speaker 02:
I think what's forgotten in both of these arguments that Your Honor is asking about with respect to is their burden of production, which they have let go both at the PTEP and in the blue brief and then an effort to re-concoct in their reply brief.

[00:22:59] Speaker 02:
the precise, concise description the area requires of being in possession of the invention, as opposed to what effectively comes down to perhaps some enablement or obviousness standard with respect to written description, which we all know is not the standard with respect to whether one has possession of the invention.

[00:23:21] Speaker 02:
And so with respect to the claims as they exist, which I think are very clear, that we have this user-selectable option where there are two types of species the claim requires no matter what, a firewall species and an intrusion prevention system species, an IPS.

[00:23:41] Speaker 02:
And that's even with the board's constructions.

[00:23:46] Speaker 02:
I understand the argument being made with the board's constructions.

[00:23:51] Speaker 02:
Even when I put in the board's constructions, as I have in front of here, it's still clear what the board meant.

[00:23:56] Speaker 02:
And by the way, when you look at the board's order throughout, that they required those two.

[00:24:00] Speaker 02:
And by the way, that's the argument the appellant made throughout the PTAP proceeding.

[00:24:05] Speaker 02:
It's only here now on appeal, we see different arguments about passion policy.

[00:24:10] Speaker 02:
Moreover, what was mentioned by Appellant was this footnote, foot 14, which I find very interesting.

[00:24:18] Speaker 02:
That's on A-15, note 14 of the PTAB order.

[00:24:23] Speaker 02:
That's deadly, actually, because there actually was a finding in there by the PTAB.

[00:24:31] Speaker 02:
The PTAB analyzed the evidence of these prior declarations and contradistinctions of what Appellant stated.

[00:24:38] Speaker 02:
and they analyzed these declarations submitted by security profiling relating to swearing behind the prior art, and they found that the inventor declarations do not include facts supporting, the quote, do not include facts supporting that a user option was present in the alleged prior activities of the inventor.

[00:24:56] Speaker 02:
So they considered both inventors' declarations and an A15 footnote 14, just to make sure you have it,

[00:25:07] Speaker 02:
And so even in a world where they wouldn't be entitled to the priority data, the provisional, this board looking at the evidence to try to swear behind the arc, which is still at best required, even if they're allowed to, given AIA rules, et cetera, at best is saying you still wouldn't have made it.

[00:25:31] Speaker 02:
You know, so what are we talking about?

[00:25:34] Speaker 02:
So beyond the fact that the provisional doesn't describe it, beyond the fact that the 852 patent, which under 35 USC 119 is the first application from the provisional, dropped almost all of the disclosure of the provisional, as the board notes.

[00:25:51] Speaker 02:
And therefore, how do we get to add it back?

[00:25:55] Speaker 02:
You only get to add it back as a CIP so you get the CIP's date because we need 112 continuation, continuation and then specific identification of the application.

[00:26:06] Speaker 02:
That 852 cuts it off.

[00:26:08] Speaker 02:
We don't get to add provisional material at any time within an application willy-nilly and that's why the board analyzed the 852.

[00:26:17] Speaker 02:
That had cut it off and

[00:26:20] Speaker 02:
And so it's at that point, the board's looking at it that it's not in the provisional, it's not in the 852, it's that that's only in the application that issues the patent, the 237.

[00:26:31] Speaker 02:
Moreover, looking at 815, note 14, you guys can't even get there with your own declaration.

[00:26:39] Speaker 02:
So I suggest to you that the board looked at everything.

[00:26:42] Speaker 02:
They analyzed the policy and patch analysis, and it's very clear they looked at those.

[00:26:48] Speaker 02:
And as we look at A14 through A17, they even looked at the Feinster Declaration and quoted it, and quoted it and said it supports the opposite conclusion.

[00:26:58] Speaker 02:
That at best when it comes to the user selectable, it's user selectable in the sense of

[00:27:07] Speaker 02:
you know, in administrators selecting not in the context of the Patrick policy, you know, mitigation techniques.

[00:27:14] Speaker 02:
And then we see that.

[00:27:15] Speaker 02:
So I think I've responded, Your Honor, to everything you have unless you have questions.

[00:27:22] Speaker 01:
May I interrupt, please?

[00:27:24] Speaker 01:
Yes.

[00:27:25] Speaker 01:
It's very hard to get a word in edgewise with you, Mr. Tchaikovsky.

[00:27:29] Speaker 01:
We've come a million miles away from Mr. Milliken's core argument.

[00:27:34] Speaker 01:
So I want you to come back and just

[00:27:37] Speaker 01:
in a nutshell so I can remember it, tell me what your response was.

[00:27:42] Speaker 01:
The position of Mr. Milliken is that the board issued a ruling that said in the provisional all of the intervention actions are automatic.

[00:27:52] Speaker 01:
There's no user option at all.

[00:27:55] Speaker 01:
Mr. Milliken says that you've admitted that both patching and policy setting are user options and that those are both disclosed

[00:28:06] Speaker 01:
the provisional.

[00:28:07] Speaker 01:
And Mr. Milken makes a very straightforward argument.

[00:28:10] Speaker 01:
It says, how can we affirm a board decision that says there are no user option interventions disclosed in the provisional when you have admitted that there are two?

[00:28:25] Speaker 01:
You referred to this

[00:28:27] Speaker 01:
argument very briefly at the beginning, and then you took off at a breakneck speed to just avoid that argument.

[00:28:37] Speaker 01:
Can you come back in a nutshell, tell me why Mr. Milliken's argument doesn't have merit?

[00:28:44] Speaker 02:
Yes, Your Honor.

[00:28:45] Speaker 02:
I apologize.

[00:28:46] Speaker 02:
I'll try to be slower.

[00:28:49] Speaker 02:
One, it's inaccurate to say that we've admitted

[00:28:55] Speaker 01:
that any of these are... Forget whether you've admitted it.

[00:28:59] Speaker 01:
It's clear that both patching and policy setting are disclosed in the provision, correct?

[00:29:08] Speaker 01:
Yes or no?

[00:29:09] Speaker 02:
There are patches in the policy in the provision.

[00:29:13] Speaker 01:
Don't give me a motor argument.

[00:29:16] Speaker 01:
Yes or no?

[00:29:16] Speaker 01:
Are they disclosed, those two things?

[00:29:19] Speaker 02:
Yes.

[00:29:20] Speaker 01:
Are they user options?

[00:29:22] Speaker 01:
Yes or no?

[00:29:23] Speaker 02:
No.

[00:29:24] Speaker 01:
Why not?

[00:29:26] Speaker 02:
Because the board is using the term user option in quotes to connote the initial language of element 1G, as they called it, code for providing a user with one or more options to selectively utilize different occurrence mitigation actions of diverse occurrence mitigation types.

[00:29:45] Speaker 02:
And nowhere within the provisional is there a disclosure that the user is allowed to pick

[00:29:53] Speaker 02:
different mitigation actions of diverse mitigation types with respect to either the patch or policy.

[00:30:01] Speaker 02:
And that cannot be pointed to by the applicant or by the petitioner here that is security profiling.

[00:30:12] Speaker 02:
that that can be done.

[00:30:15] Speaker 02:
Again, at best they can disclose that there are the patch and policy, but there is no disclosure.

[00:30:23] Speaker 02:
And if you want me to go into particulars on the policy and patch, Your Honor, I can go into particulars as to how those do not disclose the user selectable options in the record.

[00:30:40] Speaker 02:
You know, again, the disclosure with respect to policy is only it says, again, and this is that their brief, that is their brief at 20, the provisional allows the network.

[00:30:51] Speaker 01:
Mr. Tchaikovsky, again, you're going on, you're eating up the director's time.

[00:30:56] Speaker 01:
I just wanted to raise this because I thought in fairness to Mr. Milken, he probably wants to come back and greet this point in his rebuttal.

[00:31:05] Speaker 01:
And your argument got oceans away from this.

[00:31:08] Speaker 01:
And I thought that's why I wanted to come back to it.

[00:31:10] Speaker 01:
So thank you for your explanation.

[00:31:14] Speaker 02:
I apologize, Your Honor.

[00:31:16] Speaker 02:
And if I've used all my time, I guess I am complete.

[00:31:21] Speaker 05:
Yes.

[00:31:23] Speaker 05:
OK.

[00:31:24] Speaker 05:
Mr. Rasheed, you have two minutes.

[00:31:27] Speaker 05:
And I guess you're going to tell us that preservation wasn't sufficient because the argument only appeared in those

[00:31:34] Speaker 05:
Reply brief, is that correct?

[00:31:37] Speaker 00:
That's correct, Your Honor.

[00:31:39] Speaker 00:
That was the reason for our intervention.

[00:31:41] Speaker 00:
I know the issue didn't come up this morning.

[00:31:43] Speaker 00:
As you just stated, I'm happy to answer any questions on that, if the court has any.

[00:31:50] Speaker 05:
We pretty much resolved that question in our opinion in custom media.

[00:31:54] Speaker 00:
That's correct.

[00:31:55] Speaker 00:
And many cases after that, there's no reason to depart from that precedent, just enforcing ordinary forfeiture rules.

[00:32:03] Speaker 05:
Thank you.

[00:32:05] Speaker 00:
Thank you.

[00:32:10] Speaker 05:
Okay, Mr. Milliken, we'll hear you on rebuttal.

[00:32:15] Speaker 03:
Thank you, Your Honor.

[00:32:17] Speaker 03:
On my rebuttal time, I'd just like to emphasize that we argued below that the provisional discloses patches and policy selection.

[00:32:28] Speaker 03:
This is at appendix 415 to 416, which is in our patent owner response.

[00:32:34] Speaker 03:
The board rejected that argument.

[00:32:36] Speaker 03:
They said, no, the provisional discloses only automated user options.

[00:32:43] Speaker 03:
Trend Micro admitted in their brief, and my friend has admitted again in his argument, that the provisional does, in fact, disclose at least hashing and policy selection.

[00:32:56] Speaker 05:
The question was confusing me.

[00:32:59] Speaker 05:
The question is,

[00:33:01] Speaker 05:
The claim we're talking about talks about specific types of mitigation options that need to be made available to the user, i.e.

[00:33:09] Speaker 05:
fire-based type, firewall-based type, and IPS-based type.

[00:33:15] Speaker 05:
And so, given what you said, does not answer the question, right?

[00:33:22] Speaker 03:
It does, Your Honor, because the... So, again, I would just... I would make the procedural point that at Appendix 20, the Board expressly declined to reach this issue of whether the user options in the provisional were of the right type because the Board said there's no user option at all.

[00:33:41] Speaker 03:
However, if this Court were to reach that question in the first instance, my argument still applies because the patching...

[00:33:52] Speaker 03:
I see my time has expired.

[00:33:53] Speaker 03:
May I finish my answer?

[00:33:55] Speaker 03:
Of course, yes.

[00:33:57] Speaker 03:
The patching and the policy selection that are described in the provisional can be provided using firewall or IPS functionality.

[00:34:08] Speaker 03:
This can be seen, for example, at appendix 1581.

[00:34:11] Speaker 03:
And under the board claim construction.

[00:34:13] Speaker 05:
And the red on the other side.

[00:34:14] Speaker 05:
And red, I think it's pages 27 to 34.

[00:34:17] Speaker 05:
I think they make a fulsome argument on the other side.

[00:34:22] Speaker 05:
which is a different conclusion, that they are different, right?

[00:34:25] Speaker 05:
So you're saying it's up for us, that we at the appellate level can and should, or at least are able to resolve that as between the two arguments made in our briefing.

[00:34:37] Speaker 03:
We would be able to resolve it in favor of the provisional disclosing the required types of user options, but I respectfully submit that it would be improper for the court to affirm on that issue because that is an issue that the board expressly declines reach, and so that would be inappropriate under the Chenery Doctrine.

[00:35:00] Speaker 03:
Okay.

[00:35:00] Speaker 05:
All right.

[00:35:00] Speaker 05:
Thank you.

[00:35:02] Speaker 03:
Thank you, Your Honor.

[00:35:02] Speaker 05:
Time is up.

[00:35:04] Speaker 05:
We thank all parties, and the case is submitted.