[00:00:00] Speaker 00: Our next case is also Apple versus MPH Technologies, 2021-13-87. [00:00:06] Speaker 00: Mr. Lloyd is arguing this one. [00:00:12] Speaker 00: We're ready when you are. [00:00:17] Speaker 03: May it please the court. [00:00:18] Speaker 03: Seth Lloyd for Apple. [00:00:20] Speaker 03: Either of two clear claim construction errors requires reversal. [00:00:24] Speaker 03: First, the board wrongly read the claims to require particular timing. [00:00:29] Speaker 03: Second, it wrongly read the claims to require creating new connections from scratch. [00:00:35] Speaker 03: Starting with the first, the disputed language here reads establishing a first secure connection as being an active connection and extending between two given addresses. [00:00:46] Speaker 03: That plain language simply requires giving a connection those properties. [00:00:50] Speaker 03: In the board's own words, a connection is established one as extending between two addresses and two as being an active connection. [00:00:58] Speaker 03: a connection is given those properties, the requirement is met. [00:01:02] Speaker 03: Nothing in the claims mentions timing at all. [00:01:05] Speaker 03: And the specification is equally clear. [00:01:09] Speaker 03: The patent describes the, quote, method of the invention without even mentioning first connection activation, let alone suggesting it requires any special timing. [00:01:20] Speaker 03: And that's because everybody agrees that the purported advance here is all about the second connection and switching to a second connection and activating that second connection. [00:01:33] Speaker 03: Thus, when the patent actually describes connection activation, it expressly states that the timing is flexible. [00:01:40] Speaker 03: It says, when a connection is formed, it is registered for immediate and or later use. [00:01:47] Speaker 03: But the board's construction completely excludes that and or later embodiment that's disclosed in the patent. [00:01:55] Speaker 03: What's more, the board's construction is unworkable. [00:01:59] Speaker 03: The board was forced to admit at Dependix 18 that it's impossible to create a new connection from scratch and activate it simultaneously. [00:02:08] Speaker 03: it understood that there will always be some delay between those two things. [00:02:12] Speaker 03: And that's clear from the patent, right? [00:02:14] Speaker 03: So the patent, when it talks about creating a new connection from scratch, the way it describes doing that is in this time-intensive process where you have to create and share cryptographic keys between two ends of a connection. [00:02:27] Speaker 03: And then only later, in a separate step, does the patent talk about registering that previously created connection as active. [00:02:35] Speaker 03: And so under the board's and MPH's view, the claims somehow permit some time delay between creating a new connection and activating it, but not too much. [00:02:44] Speaker 03: But nobody can say how much is too much. [00:02:47] Speaker 03: And the reason nobody can say how much. [00:02:49] Speaker 01: Well, doesn't that just make it indefinite if it's ever asserted in litigation? [00:02:54] Speaker 03: Well, it may make it indefinite. [00:02:56] Speaker 01: Or it may make it unworkable so nobody infringes either, like we were talking about last time. [00:03:02] Speaker 03: I know you don't want to have to wait, but... I think it probably makes the construction indefinite, but I think there's a precursor question, which is the reason why nobody can say how much delay is too much, Judge Hughes, is because nothing in the claims suggests any such limit, right? [00:03:16] Speaker 03: The claim is simply silent. [00:03:17] Speaker 03: The key words that the board focused on, when, [00:03:20] Speaker 03: at the time, immediate, none of those words appear in the disputed language. [00:03:24] Speaker 03: In fact, the patent uses some of those words later in other claims, making clear that when the patentee intended to specify the kind of timing the board was focused on here, it used those kind of words. [00:03:36] Speaker 03: But here the claim language just says, establishing a first secure connection as being an active connection. [00:03:41] Speaker 03: Any time you make a connection active, you've satisfied that claim. [00:03:45] Speaker 04: In your view, is there a difference between removing the board's timing requirement that you described and accepting that modifying a connection could establish that connection as being active? [00:03:57] Speaker 03: I think they can be related, but there is a difference. [00:04:01] Speaker 03: And I think either is an independent basis for relief here. [00:04:05] Speaker 03: So on the timing issue, we're essentially assuming that the claim requires creating a new connection from scratch. [00:04:13] Speaker 03: And the timing question is, [00:04:15] Speaker 03: Is there a time restriction that when I create it from scratch, at that time, I have to activate it? [00:04:21] Speaker 03: So that's the first issue. [00:04:22] Speaker 03: But then the second issue, of course, we're fighting the premise that you have to create a new connection from scratch because, again, the claim language just says establishing a connection as an active connection and extending between properties, between addresses. [00:04:36] Speaker 03: So you can modify a connection and give it those properties. [00:04:39] Speaker 03: And on that issue, [00:04:42] Speaker 03: I guess we're essentially assuming there would be a timing restriction, but say if you modify a connection you are satisfying the timing restriction and the claim requirement and I'd like to address that kind of second independent issue We don't think you need to read them up reach the modification issue if you agree with us on the timing and [00:05:01] Speaker 03: Issue but again there's nothing in the claims that suggests you can't take an existing connection and Modify it to give it the properties required in the claims and in fact claim two of the patent makes that clear So this is on appendix 33 [00:05:17] Speaker 03: And you have to kind of look at the relationship between claim one and claim two so claim one in addition to that the first connection limitation We've been talking about claim one also says establishing a second secure connection Extending between a second network address and an original network address so just as with the language We've been talking about it requires establishing a second connection extending between two addresses and then claim two modifies that claim two says [00:05:42] Speaker 03: the method of claim one, wherein the method further comprises establishing the second secure connection when the second secure connection does not already exist. [00:05:52] Speaker 03: And so under ordinary claim interpretation principles, that strongly implies that claim one covers establishing a connection between two addresses when the connection does already exist. [00:06:04] Speaker 03: And that's just ordinary English as well. [00:06:07] Speaker 03: I don't think this has to be too abstract. [00:06:11] Speaker 03: If you have a connection between A and B, [00:06:13] Speaker 03: And you modify that connection so that that connection is now between A and C. It would be perfectly ordinary English to say, I've now established a connection between A and C. And that's all that the claim language is talking about here, too. [00:06:28] Speaker 03: Modifying a connection that used to be between two points so that it's now between two new points, you've established a connection between those two new points. [00:06:36] Speaker 03: And that's further reinforced by unrebutted extrinsic evidence. [00:06:40] Speaker 03: So both parties' experts agree. [00:06:42] Speaker 03: that a secure connection here is simply a collection of data structures. [00:06:47] Speaker 04: Didn't you not dispute the construction, but more so dispute the application of the construction? [00:06:54] Speaker 04: Is that how this was kind of framed below? [00:06:57] Speaker 03: So we said that, Your Honor, in our paper. [00:07:01] Speaker 03: And then at the same time, we explained what we meant by that. [00:07:04] Speaker 03: So we agreed that under the plain meaning of the claims, the only question here was application of the claims to the prior art. [00:07:12] Speaker 03: But then we told the board in the exact same filing that mth was departing from the plain meaning of the claim so in the exact same filing this is that appendix 328 we said mth attempts to avoid the prior art by arguing that the claim constructions for establishing and secure connection exclude the mobile host modifying a secure connection from being the claimed establishing and then just a few pages later [00:07:36] Speaker 03: At appendix 332, we said the same thing about our first issue, the timing issue. [00:07:40] Speaker 03: We said, specifically, although MPH does not construe the term active connection, MPH implicitly does so by arguing that Ahonin, the prior art, does not teach the claim active connection because the security connections are not established as an active connection for immediate use. [00:07:57] Speaker 03: And then we finished at the bottom of the page. [00:07:59] Speaker 03: But nothing in the claims or the specification requires an element of immediacy [00:08:04] Speaker 03: or particular timing to exist. [00:08:05] Speaker 03: So those are the exact issues that we're raising here, and MPH joined issue with us on that. [00:08:11] Speaker 03: MPH's very next filing right after we said what we said we agree about the construction, but then the parties obviously disagreed about what that construction meant. [00:08:20] Speaker 03: MPH is this is the introduction of its very next filing. [00:08:24] Speaker 03: It said the parties have a fundamental disagreement on the construction of the claim term establishing. [00:08:30] Speaker 03: So yes, the parties agreed about the forming or creating a new connection, but then the parties completely disagreed about what that meant and what it meant for the scope of the claims. [00:08:40] Speaker 03: from 358 to 363 or 364, the next several pages of this paper joined issue and treated that as a question of claim construction. [00:08:50] Speaker 03: And that's how the board understood it and treated it as well. [00:08:53] Speaker 03: So the parties were joined, but this was an issue of claim construction. [00:08:57] Speaker 03: The board decided the issue of claim construction. [00:08:59] Speaker 03: If you look at the board's brief, right, so sorry, not brief, but the board's decision from appendix pages, starting at appendix page 14, [00:09:11] Speaker 03: Through Appendix Page 19, the board's entire discussion focuses on the claim language, what the claim language requires, what the specification says. [00:09:19] Speaker 03: It's a claim construction discussion. [00:09:22] Speaker 03: And only at Appendix 19, after adopting its erroneous construction, does it then turn to the prior and says, as to Opponent's disclosure. [00:09:31] Speaker 03: So it clearly signals now we're discussing application of the claims to the priority. [00:09:36] Speaker 03: So the error the board made was in the construction. [00:09:38] Speaker 03: And again, there are two independent errors, either of which requires relief and apples favored. [00:09:45] Speaker 03: But nothing in the claims requires any particular time. [00:09:47] Speaker 03: There are no timing words in the claims. [00:09:49] Speaker 03: And the specification is expressly flexible. [00:09:52] Speaker 03: It says you can register it for use immediately and or later. [00:09:56] Speaker 03: Under ordinary claim constriction, you don't limit claims when the claims don't say anything about timing. [00:10:02] Speaker 03: The specification says timing is flexible. [00:10:04] Speaker 03: And then nothing in the claims suggests any kind of modification is required. [00:10:10] Speaker 04: Could you read that immediate and or later use language to refer to a connection being established as active and then separately capture an existing connection? [00:10:20] Speaker 03: I don't think so, Your Honor, because if I'm understanding the question correctly, and maybe this is [00:10:27] Speaker 03: Tell me if this isn't what you're getting at. [00:10:29] Speaker 03: I mean, the board equated immediate use with active and said, you know, because there's somehow immediate use is equated with active. [00:10:38] Speaker 03: Therefore, when the claim uses active, that tells us it's immediate. [00:10:41] Speaker 03: I think that's clearly wrong and can't be the way the claim means it from looking at claim 11, right? [00:10:49] Speaker 03: So the appendix 33. [00:10:52] Speaker 03: This claim 11 modifies claim 1. [00:10:54] Speaker 03: So claim 1, again, is at the very end of claim 1. [00:10:57] Speaker 03: It talks about registering the already established second secure connection as being the active connection. [00:11:04] Speaker 03: So similar language, you have to register a second connection as being an active connection. [00:11:08] Speaker 03: And then claim 11 says, the method of claim 1, wherein the second secure connection is registered for immediate and or later use. [00:11:17] Speaker 03: So it would make no sense if active [00:11:21] Speaker 03: Equated with immediate for then claim 11 to say well yeah, but you can register it for immediate and or later use the board's understanding of equating active and immediate would exclude an entire part of claim 11 which says and or later use so I think again the board was wrong there based on ordinary meaning based on the language of the claims themselves and based on the specification I think again just the [00:11:47] Speaker 03: One final plan of course happy to answer any questions, but you know I think that the key point to remember here Is claim one this is it's almost like the preamble, right? [00:11:56] Speaker 03: It's the it's the environment in which the purported advance is happening because The advance is all about the second connection you have to have a first connection it has to be active and it has to be between these two points and then [00:12:10] Speaker 03: you're going to perform the purported advance, which is to change to the second connection. [00:12:14] Speaker 03: That's why none of these limits that the board read into the claims make any sense, because the advance here has nothing to do with when and how that first connection is activated or established between two addresses. [00:12:29] Speaker 03: I see I'm into my rebuttal time. [00:12:31] Speaker 03: Happy to answer any other questions. [00:12:33] Speaker 00: We will save it for you. [00:12:39] Speaker 00: Mr. Hahn again. [00:12:43] Speaker 02: May it please the court. [00:12:46] Speaker 02: The court should affirm the board's decision here for [00:12:49] Speaker 02: One very straightforward reason. [00:12:52] Speaker 02: And that's the claims of the 302 patent all require establishing an active first connection. [00:12:59] Speaker 02: And Apple's A. Honan reference only establishes inactive connections. [00:13:04] Speaker 02: All the connections are established with their flag set to off indicating inactive status. [00:13:09] Speaker 02: This is at A. Honan appendix page 938 to 939. [00:13:13] Speaker 02: And Ahonin's inactive connections are not active connections. [00:13:18] Speaker 02: Off does not mean on. [00:13:20] Speaker 02: So Ahonin's secure connections are born inactive, while the claim requires that the first secure connection is born active. [00:13:27] Speaker 02: And Apple's entire appeal on all claims fails for this simple reason. [00:13:32] Speaker 02: We talked a little bit during Apple's argument about the amount of time between when is it established and turned on, and is the claim indefinite for that reason. [00:13:43] Speaker 02: First of all, we certainly don't think so. [00:13:46] Speaker 02: But the question about the amount of time is a red herring, because that issue is the Ahonan reference. [00:13:53] Speaker 02: And there's no time needed to be looked at, because the connections are all actually born inactive. [00:14:02] Speaker 00: What about the claim language or later use? [00:14:07] Speaker 02: I'm sorry? [00:14:07] Speaker 00: Or later use? [00:14:09] Speaker 00: Claim language. [00:14:11] Speaker 02: I'm sorry, I didn't hear the last portion. [00:14:14] Speaker 00: Or later use, some claim 11. [00:14:17] Speaker 02: Oh, yes. [00:14:18] Speaker 00: And your opposing counsel was arguing that point. [00:14:21] Speaker 02: Yes, Your Honor. [00:14:22] Speaker 02: And this refers to the second secure connection. [00:14:26] Speaker 02: And so really, the disputed limitation with respect to the board's decision is on establishing a first secure connection. [00:14:34] Speaker 02: So claim 11 really only speaks to registered for immediate or later use with respect to the second secure connection. [00:14:42] Speaker 02: And we think the board correctly found that on the first secure connection, that language actually requires as being an active connection. [00:14:50] Speaker 02: And that language is not there with respect to the second secure connection. [00:14:54] Speaker 02: And I think what's important here, and what I didn't hear a lot from Apple's counsel, is this agreed construction. [00:15:01] Speaker 02: So MPH is actually the party who proposed the construction for establishing, meaning forming or creating new secure connections. [00:15:12] Speaker 02: And Apple agreed to that construction. [00:15:14] Speaker 02: And now when you read that construction together with the rest of the claim phrase, you have forming or creating a new secure connection as an active connection. [00:15:25] Speaker 02: And so forming or creating something new denotes a particular timing. [00:15:30] Speaker 02: You only form or create something new one time. [00:15:34] Speaker 02: It's only new at one instance. [00:15:37] Speaker 02: And as an active connection is a prepositional phrase, right? [00:15:40] Speaker 02: It modifies the prior. [00:15:42] Speaker 02: So you're forming or creating something new as active. [00:15:45] Speaker 02: It's born active. [00:15:46] Speaker 02: And so that's why the board, you know, the board actually read that agreed construction and it read it within the context of the surrounding claim language. [00:15:54] Speaker 02: And really, you know, the appeal here is about that language as being an active connection. [00:15:58] Speaker 02: Neither party asked the board to construe that claim language. [00:16:03] Speaker 04: Could a party avoid infringement by pre-registering connections and then only subsequently activating them? [00:16:18] Speaker 02: Well, the claim requires, Your Honor, that at least a first secure connection is established, formed, or created as a new secure connection. [00:16:29] Speaker 02: I guess I'd like to see specifically an embodiment before I concede that, you know, it's a non-infringement theory. [00:16:35] Speaker 02: I understand that, you know, parties endeavor to practice the prior art as a means of non-infringement, but it would be difficult to me to concede a particular non-infringement. [00:16:51] Speaker 02: But again, this issue about forming or creating a new secure connection within the context of the rest of the claim phrase is very important. [00:17:00] Speaker 02: And I think Apple, frankly, in their briefing and their argument today, they're running from that agreed construction of forming or creating a new secure connection. [00:17:08] Speaker 02: Because as I said, it denotes a particular timing. [00:17:11] Speaker 02: It's only new once. [00:17:13] Speaker 02: Right? [00:17:13] Speaker 02: And second of all, because their alternative argument, which they're framing now as a claim construction argument, but really this was only made in the context of the differences between the claim and the prior art, which is a factual question below. [00:17:26] Speaker 04: What about the fact that they said they agreed to the construction, but then said that there is this other dispute that council outlined? [00:17:33] Speaker 04: What do you make of that? [00:17:36] Speaker 02: Thanks, Your Honor. [00:17:37] Speaker 02: I'm glad you raised it. [00:17:38] Speaker 02: If I can direct your attention very specifically to Apple's reply brief, this is appendix page 320, and Apple says very unequivocally, the parties do not dispute the claim construction for the term establishing. [00:17:51] Speaker 02: Establishing should be construed to mean forming or creating a new secure connection, as proposed by MPH. [00:17:57] Speaker 02: And then the very next sentence speaks specifically to what you're asking. [00:18:01] Speaker 02: Apple says, but the parties do dispute how that definition is applied to AHON and this proceeding. [00:18:07] Speaker 02: But of course, for obviousness, the scope and content of the prior art and the differences between the claims and the prior art, those are factual inquiries underlying obviousness. [00:18:19] Speaker 02: So Apple makes a number of arguments where a claim construction or claim scope was made. [00:18:25] Speaker 02: But if you look at each one of these instances in the record very clearly, [00:18:30] Speaker 02: They're all made in the in a discussion of applying a honing or applying the claims rather to a honing So this is a factual question that should be reviewed for substantial evidence here not not de novo They don't get a brand new opportunity to argue new claim constructions And this claim construction like I said Forming or creating a new secure connection this actually speaks specifically to their second argument on modifying a claim and that's because [00:19:01] Speaker 02: Modifying something that already exists, which is what they're arguing AHONEN does, this is clearly not forming or creating a new, secure connection. [00:19:12] Speaker 02: No one would say that when you modify something, it becomes new. [00:19:16] Speaker 02: At one time or another, this courthouse was just the National Courts building, right? [00:19:20] Speaker 02: And then one day, it was renamed the Howard T. Markey Courts building, right? [00:19:25] Speaker 02: It was modified in that way. [00:19:27] Speaker 02: Did that make it a new courthouse? [00:19:30] Speaker 02: I don't think so. [00:19:32] Speaker 02: And I think the same holds true here with respect to secure connections. [00:19:37] Speaker 02: And moreover, the 302 patent expressly distinguishes establishing secure connections from updating secure connections. [00:19:47] Speaker 02: At column seven, lines 39 to 58, we talk about secure connections being established by forming new security associations. [00:19:56] Speaker 02: But at the bottom of column seven and up in the top of column eight through lines 12, [00:20:02] Speaker 02: It describes secure connections being updated by a way of a request message that updates the security associations. [00:20:09] Speaker 02: So this is more akin to what they're accusing, or what they're allowing on in the prior artist, modifying a connection. [00:20:18] Speaker 02: But the claims here don't claim updating or modifying a connection. [00:20:22] Speaker 02: They claim establishing. [00:20:25] Speaker 04: So if you modify a pre-established connection to be active, do you contend that within the French? [00:20:30] Speaker 04: I'm trying to get a sense of the practical impact here. [00:20:35] Speaker 04: If we modify a pre-established connection to be active. [00:20:43] Speaker 02: Well, for instance, if you look at the second secure connection, Your Honor, the second secure connection is established in element A. [00:20:52] Speaker 02: And you move through the claim and the first terminal checks to see if the second secure connection already exists. [00:21:00] Speaker 02: And if it does, then it makes that the active connection. [00:21:03] Speaker 02: And so at that point, there is a registration request made to, at least in some bodyments, you have to register that second secure connection as an active connection. [00:21:13] Speaker 02: So there is a modification made to the second secure connection in order to make it active. [00:21:19] Speaker 02: So in that instance, you know, I think you meet the claims, but here again, we're talking about the, you know, the first seizure connection, which is born as active. [00:21:49] Speaker 04: Do you agree that the column 7, lines 25 through about 30 would relate to this whole issue of modifying a connection to make it active? [00:22:02] Speaker 02: Column 7, lines 25 through? [00:22:05] Speaker 04: About 30. [00:22:17] Speaker 02: Yes, your honor. [00:22:18] Speaker 02: I think that does speak pretty specifically to Claim 1. [00:22:24] Speaker 02: You have Claim 1, the first secure connection being established as active. [00:22:30] Speaker 02: The second secure connection has no specific requirement. [00:22:33] Speaker 02: I think we talked about line 45 later in the spec when it says when a secure connection is formed, it could be registered for immediate or later use. [00:22:43] Speaker 02: In the claim, you have a first secure connection, which is established as active. [00:22:48] Speaker 02: And so, you know, back to your line 25 through 30, you have that one active connection. [00:22:54] Speaker 02: And the second secure connection, it's not specifically required by the claim, so that could be registered for immediate or later use. [00:23:00] Speaker 02: So if it's later use, then at that time, you would only have one active connection. [00:23:05] Speaker 02: You would have a first secure connection, which is active. [00:23:18] Speaker 00: Anything further counsel? [00:23:21] Speaker 02: Yes, Your Honor, quickly. [00:23:22] Speaker 02: Apple made a brand new argument in this briefing I'd like to address very quickly about the patent only being a trivial variation of the prior art. [00:23:35] Speaker 02: And respectfully, this was a brand new argument that Apple never made below. [00:23:40] Speaker 02: And second of all, this is an argument for which there was no evidence in the record below. [00:23:45] Speaker 02: And so I think For that reason apple then chose to rely on the on the patent itself unfortunately for for apple it relied on the summary of the invention and specifically back to that [00:23:58] Speaker 02: Disclosure we've discussed a number of times today about registering a connection for being for immediate or later use and They said well these are the two options that were well known in the yard and everyone knew it But there's nothing about that disclosure. [00:24:14] Speaker 02: That's the summary the invention That's no admission about what happens in the prior art and if we look at Apple's briefing on this issue and [00:24:21] Speaker 02: Repeatedly when they say something is known in the art what they really what they're really referring to is the ipsec protocol, and I think we've looked at We've talked about the ipsec protocols very generally and Mph was not claiming to have invented basically an ipsec protocol these are specific implementations of how they are used and so [00:24:47] Speaker 02: I guess one last point to make on that is that AHONEN clearly only offers one choice when it came to those two. [00:24:54] Speaker 02: That's registering connections as inactive. [00:24:59] Speaker 02: And there's nothing about the AHONEN reference which suggests or teaches that those connections could be registered for immediate use. [00:25:08] Speaker 02: And I think one important point to note about the AHONEN reference here, [00:25:14] Speaker 02: If we look at the claims, this is on the appendix page 947. [00:25:18] Speaker 02: This is claim one of the Ahonen reference. [00:25:27] Speaker 02: And you have element one is negotiating the one or more security associations. [00:25:34] Speaker 02: So this is establishing your secure connections. [00:25:38] Speaker 02: But the rest of the disclosure describes that those are all initially set with the flag set to off. [00:25:44] Speaker 02: So then when you look at the claim element two, this says, subsequently initiating a communication between the mobile host and the security gateway, sending an authentication certificate. [00:25:55] Speaker 02: This authentication certificate is what requests the activation. [00:25:59] Speaker 02: So this is the claim of the patent. [00:26:01] Speaker 02: And if we go back to the summary of the invention, this is on appendix page 927. [00:26:07] Speaker 02: It's the exact same disclosure. [00:26:09] Speaker 02: So this goes to the very heart of the Ahonan invention. [00:26:12] Speaker 02: And so this is one difference that was identified in the appeal. [00:26:18] Speaker 02: Much of this appeal relies on this difference in Ahonan because the board didn't need to get any further than really the first element of these claims that this first secure connection was born active. [00:26:33] Speaker 02: And Avonin's disclosure only establishes inactive connections and makes those connections activated subsequently at a later time, which was different. [00:26:51] Speaker 02: I think the unhappy with the result below [00:26:54] Speaker 02: What MAPL is trying to do is, you know, change and complicate the issues on this appeal. [00:27:01] Speaker 02: It's ignoring the agreed construction it made below. [00:27:03] Speaker 02: It's accusing the board of suespante, construing the claims. [00:27:08] Speaker 02: It's asserting new constructions. [00:27:10] Speaker 02: It's asserting this new trivial variation theory. [00:27:13] Speaker 02: But none of this changes the fact that Ehonen's connections are all born inactive with their flag set to off. [00:27:18] Speaker 02: And the claims all require a first secure connection that's born active. [00:27:23] Speaker 02: The board's decision should be affirmed in all respects. [00:27:26] Speaker 04: One last question on AHONEN. [00:27:29] Speaker 04: Is AHONEN's remote control flag about whether connection is remotely activated, not whether it's even active in the first place? [00:27:37] Speaker 04: How do you view that? [00:27:39] Speaker 02: Yes, Your Honor. [00:27:40] Speaker 02: I see my time is expiring, but I may answer your question. [00:27:45] Speaker 02: Yeah, so if we look at the bottom of the appendix, page 938, [00:27:54] Speaker 02: into the top of appendix page 939. [00:27:59] Speaker 02: This is the authorization certificate that's sent at the conclusion of the preparations phase. [00:28:06] Speaker 02: So there's two certificates. [00:28:07] Speaker 02: There's one during the preparations phase. [00:28:09] Speaker 02: And on this one, the very last line of appendix 938 says, well, initially, in the informational certificate, this flag is set to off. [00:28:18] Speaker 02: Right? [00:28:19] Speaker 02: So then we conclude the preparations phase and move on to the remote control function that your honor referred to. [00:28:24] Speaker 02: And now we get into appendix page 940. [00:28:28] Speaker 02: And at the bottom of page, appendix page 40, this is talking about this remote control authorization certificate. [00:28:36] Speaker 02: This is the subsequent certificate. [00:28:38] Speaker 02: And this is where the remote control flag is set on. [00:28:43] Speaker 00: Thank you, counsel. [00:28:44] Speaker 02: All right. [00:28:45] Speaker 02: Thank you very much. [00:28:47] Speaker 00: Mr. Lloyd has a little rebuttal time. [00:28:50] Speaker 03: Thank you, Your Honor. [00:28:51] Speaker 03: Three quick points. [00:28:52] Speaker 03: First, we heard a lot about the agreed construction. [00:28:55] Speaker 03: But at the board, both the parties and the board understood that although the parties had agreed on these terms, there was complete disagreement about what that meant. [00:29:04] Speaker 03: So when MPHS Council made the same point here, will the parties agree to forming or creating a new connection, the board's response, this is that Appendix 434, at the hearing was, yeah, but the parties dispute the meaning of the term new. [00:29:16] Speaker 03: So there was no agreement. [00:29:18] Speaker 03: Yes, they agreed on these words, but everybody understood that they were saying they meant completely different things by these words. [00:29:23] Speaker 03: And so the only way to resolve that dispute is to look at the claim language, which at the end of the day is what defines the scope of the claims. [00:29:30] Speaker 03: And when you look at the claim language, any time you see the word establishing, you have to ask yourself, establishing what? [00:29:36] Speaker 03: What is it that's being established? [00:29:38] Speaker 03: It's not the first connection per se, it's properties of the first connection. [00:29:43] Speaker 03: So it's like if I say in ordinary English, establishing a city as being a tourist destination. [00:29:50] Speaker 03: Nothing about that sentence suggests a timing about when the city is going to be made a tourist destination. [00:29:56] Speaker 03: It doesn't suggest at the time the city is created from scratch, a new city, that at that time I'm making it a tourist destination. [00:30:03] Speaker 03: Any time you give it the property of being a tourist destination, you've established it as being a tourist destination. [00:30:10] Speaker 03: And the As-Being Council focused on the As-Being language. [00:30:13] Speaker 03: That's the language that tells you what's being established is a property. [00:30:17] Speaker 03: It's a state of being, right? [00:30:19] Speaker 03: So you have to give a connection to that property. [00:30:22] Speaker 03: The Opposing Council talked about the prior Ahonan and said, well, you know, when they're created [00:30:27] Speaker 03: brand new, they're not made active, but there's no dispute that they later are made active. [00:30:32] Speaker 03: Judge Cunningham, you asked about the remote function. [00:30:37] Speaker 03: MPH agreed at the board at appendix 300 to 301 that, in fact, Ohonan does activate those connections. [00:30:43] Speaker 03: They are made active. [00:30:45] Speaker 03: It simply happened in MPH's, in the board's view, too late in time. [00:30:49] Speaker 03: But there's nothing in the claims that suggests any timing restriction. [00:30:53] Speaker 03: Finally, I did want to [00:30:55] Speaker 03: Clarify a point about claim 11. [00:30:57] Speaker 03: Council said, well, that's about the second connection, and here we're talking about the first connection. [00:31:02] Speaker 03: But the point about claim 11 is how the claims use the word active. [00:31:06] Speaker 03: Yes, it's about the second connection, but claim 1 says the second connection is registered as active. [00:31:12] Speaker 03: Claim 11 then says, wherein the second secure connection is registered for immediate and or later use. [00:31:18] Speaker 03: So that tells you the word active can't be equated with immediate only. [00:31:24] Speaker 03: It must cover both immediate and or later use. [00:31:27] Speaker 03: And the board's construction improperly excluded that and or later use. [00:31:31] Speaker 03: And for that reason, the board's decision should be reversed. [00:31:35] Speaker 00: Thank you, counsel. [00:31:37] Speaker 00: Case will be taken under submission.