[00:00:00] Speaker 01: 2280 intellectual ventures one LLC against Lenovo Group Limited. [00:00:08] Speaker 01: Mr. Vidal. [00:00:11] Speaker 00: Thank you your honor. [00:00:11] Speaker 00: Good morning and may it please the court. [00:00:14] Speaker 00: The district court's ruling in this case was a summary judgment ruling but the issues presented in this appeal are claimed construction issues for this court to address. [00:00:25] Speaker 00: Specifically we contend that the district court erred in creating [00:00:30] Speaker 00: extraneous claim limitations that were not supported by the patent's intrinsic record and that those claim construction rulings were undisputedly the basis for the district court summary judgment ruling. [00:00:42] Speaker 00: I'd particularly like to focus on two primary construction issues today, each of which we submit provides an independent basis on which to reverse the district court's judgment. [00:00:54] Speaker 00: The first of those regards the claim language in both of the independent claims at issue, detecting a storage device within the storage drive. [00:01:04] Speaker 00: The district court's construction essentially simply added a word and a negative limitation to this to require that language to be detecting a removable storage device within the storage drive. [00:01:18] Speaker 00: That construction was erroneous. [00:01:21] Speaker 00: Obviously, as a starting point, a construction that mirrors the words of the claim but merely adds additional words of limitation is always going to be presumptively problematic. [00:01:33] Speaker 00: The district court recognized and acknowledged that its construction here was not based on the ordinary meaning of the language. [00:01:42] Speaker 00: The district court explicitly stated it was finding a disclaimer as the basis for its construction, a disclaimer it asserted was found in the specification. [00:01:51] Speaker 00: We respectfully submit that the district court misread both this court's precedent and the specification in reaching that conclusion, that the specification not only did not support such a limitation, but if anything, directly contradicted it, and that the district court failed to read both the specification [00:02:12] Speaker 00: in its entirety and in context, and also to credit a variety of claims which further clarified that the limitation the district court added was definitely not what was intended and not a disclaimer the patent he was offering. [00:02:28] Speaker 00: This court's precedents have been very clear in many different cases, AvidTech, Libel, Flarsheim, and many others, Primatech, that [00:02:38] Speaker 00: finding a disclaimer requires very explicit, clear, and unmistakable words of exclusion in the specification. [00:02:45] Speaker 00: The district court didn't find those. [00:02:48] Speaker 00: It essentially found that certain embodiments in the patent and indeed the preferred embodiment talked about the use of a removable storage device. [00:02:57] Speaker 00: But in making those findings, it discounted or failed to acknowledge other passages in the specification [00:03:04] Speaker 00: and essentially added this limitation that was not at all warranted. [00:03:10] Speaker 00: Just to give a couple of examples, there were passages in the specification that described embodiments different from that involving what the district court described as using a storage device, essentially a removable storage device, excuse me, as essentially an access card. [00:03:28] Speaker 00: One of those examples was in column four, [00:03:33] Speaker 00: Starting about line 46, there was a discussion of various possible embodiments. [00:03:39] Speaker 00: One of those embodiments was when a removable storage device was inserted into a drive in the computer that the computer would perform operations of sensing security information. [00:03:51] Speaker 00: But the passage at the end of that paragraph around line 61 [00:03:56] Speaker 00: 60 to 61 rather, explains that in another embodiment, the storage manager would perform this method of sensing security information on a storage device when it was requested by a user as opposed to, for example, when a removable device was inserted. [00:04:13] Speaker 00: So clearly talking about other ways that this could be practiced. [00:04:18] Speaker 04: Isn't that distinction just whether the computer does it automatically or waits for a request, not the distinction between [00:04:25] Speaker 04: or removable and non-removable storage device. [00:04:29] Speaker 04: That's what I took that distinction to be. [00:04:32] Speaker 04: It had nothing to do with any non-removable device, just whether the computer launches it automatically or waits to be asked. [00:04:41] Speaker 00: I think that it's certainly discussing whether it launches it automatically or waits to be asked, Your Honor. [00:04:46] Speaker 00: However, if you're talking about using, for example, an access card, [00:04:52] Speaker 00: concept, which the district court credited as essentially the only way to practice the invention or a necessary part of the invention, it would have to be automatic for that to function. [00:05:02] Speaker 00: Otherwise, the notion of having the user request it wouldn't make a whole lot of sense. [00:05:07] Speaker 00: But there's another passage that sort of further confirms this. [00:05:11] Speaker 00: If we go to the end of column six and the beginning of column seven, there's a description of yet another embodiment where [00:05:19] Speaker 00: security information is sensed not only from a removable device, but explicitly from the, in this instance, non-removable hard disk, 120, and that that then can be used, that security information sensed from a non-removable disk can be part of what's used to encrypt information that's stored both on the hard disk and on any removable disk. [00:05:42] Speaker 00: This starts at column six around line 63 and then carries over to the first few lines of column seven at appendix 254 to 255. [00:05:53] Speaker 00: So clearly the patent is teaching that the hard disk can have security information that's sensed and that's used in encrypting exactly what the claims describe. [00:06:06] Speaker 00: So there's indeed an embodiment, a disclosed preferred embodiment that does exactly what the district court found the patent excludes. [00:06:16] Speaker 00: Clearly we think that heavily informs whether that restrictive construction was appropriate. [00:06:22] Speaker 00: And then of course there are multiple dependent claims that we submit further confirm and that needs to be read as part of the context of the whole specification in understanding whether there was a disclaimer. [00:06:36] Speaker 00: There are multiple dependent claims that add the removable storage device limitation, not as that's what a storage device is in the patent, but rather that is a subspecies in a dependent claim. [00:06:49] Speaker 00: We pointed out claims 28 and 29, claims 46 and 47 all bring these aspects in, in ways that the district court respectfully misapplied, I think, [00:07:04] Speaker 00: as we pointed out in particular in the gray brief, the district court focused on the fact that one of those dependent claims 28 used the word storage medium as opposed to storage device as the removable item and suggested that that was... Mr. LaDalle, this is Judge Chen. [00:07:21] Speaker 03: Yes. [00:07:22] Speaker 03: As I understand the doctrine of claim differentiation, it's not the end all be all. [00:07:26] Speaker 03: It can be a useful and important tool, but we don't let it [00:07:33] Speaker 03: be the tail that wags the dog if the dog is crystal clear as to the meaning of a claim term, in a sense. [00:07:41] Speaker 03: And so in this particular instance, if we were to conclude that the specification is very clear in many different ways that the invention is about a removable storage device, given that the problem to be solved is about removable storage devices that can [00:08:01] Speaker 03: copy sensitive data and then walk away with that data by an unauthorized person, as well as several references in the patent to the invention or the present invention about allowing the copying of data only when the computer senses that the removable storage device is a secure one. [00:08:29] Speaker 03: And then finally, [00:08:31] Speaker 03: very consistent references throughout the patent about a removable storage device and the interchangeable usage of storage device 151 and removable storage device 151. [00:08:45] Speaker 03: It altogether, arguably, paints a very clear picture that what we're talking about here in this claim is a removable storage device. [00:08:57] Speaker 03: And if that's the case, then claim differentiation [00:09:00] Speaker 03: doesn't control. [00:09:03] Speaker 00: Well, Your Honor, I think two comments. [00:09:05] Speaker 00: First, we obviously disagree that the specification outside the claims is somehow crystal clear in this manner. [00:09:13] Speaker 00: I would submit that there are discussions certainly of a preferred embodiment, but that none of those discussions rise to the high level that this court routinely requires to find an actual disclaimer. [00:09:26] Speaker 00: And I also believe that while it's true, claim differentiation is not a be-all, end-all doctrine. [00:09:33] Speaker 00: Here, it's important to look at that claim differentiation to understand the purported disclaimers and the specification. [00:09:41] Speaker 00: They have to be read together in context. [00:09:43] Speaker 00: Those aren't completely separate inquiries. [00:09:46] Speaker 00: Rather, it's important to look at the specification, look at those passages that are suggested to be disclaimer, [00:09:53] Speaker 00: and ask, are they really intended to be a disclaimer? [00:09:56] Speaker 00: Is that really what should be conveyed, especially when that's inconsistent with the way the claims are written in the patent? [00:10:03] Speaker 00: If the claims are written inconsistently, it's certainly a strong indication that those passages shouldn't be read as disclaimers. [00:10:13] Speaker 00: If there are other questions on that issue, I'd be happy to address them. [00:10:17] Speaker 00: Otherwise, I'd like to briefly move to the other issue that is a separate claim construction issue, [00:10:23] Speaker 00: arising from the district court summary judgment ruling. [00:10:27] Speaker 00: Specifically, this was adding a location of encryption element or restriction to each of the independent claims, claim 15 and 18. [00:10:38] Speaker 00: I'll focus on claim 15. [00:10:40] Speaker 00: The language of the claim recited encrypting digital data using security information during a right access. [00:10:49] Speaker 00: And the district court held that that meant [00:10:52] Speaker 00: that the encryption had to take place within certain components and not other components. [00:10:56] Speaker 00: We submit that's clearly erroneous, that nothing in the patent or in the claim suggests that the encryption has to take place in a particular location, that that language recites the timing and the nature of when that occurs in conjunction with a right access, not that it has to be performed by a particular component in these method claims. [00:11:19] Speaker 03: Do you have written description support in the specification for the claimed storage device itself to do the encryption of the data? [00:11:30] Speaker 03: And assume for the moment that we're talking about a removable storage device. [00:11:34] Speaker 00: Sure. [00:11:35] Speaker 00: The specification does not discuss that specifically as to whether it has to be performed in one location or another. [00:11:42] Speaker 03: It's true that the written description, every time it talks about encrypting digital data, [00:11:47] Speaker 03: it's done by something that is not the removable storage device. [00:11:54] Speaker 00: It's correct that the disclosed embodiments perform in that function. [00:11:58] Speaker 00: We submit that, one, that that's not an appropriate way to limit the claims, and two, when the patentee wanted to write a claim directed to that format where the encryption took place outside the writing, [00:12:12] Speaker 00: It wrote the claim differently. [00:12:14] Speaker 00: Claim two is a great example of that. [00:12:15] Speaker 00: That's a different question than whether there's written descriptions or... Well, Your Honor, there's no finding here that there's a lack of written description support or that this is in any way a written description issue. [00:12:27] Speaker 00: Your priority date is 1999. [00:12:31] Speaker 03: Do you know if removable storage devices in 1999 had the capability of encrypting data? [00:12:41] Speaker 00: I don't know the answer to that question off the top of my head, Your Honor, and there's certainly no evidence in the record to suggest one way or the other. [00:12:50] Speaker 00: Floppy disk couldn't encrypt digital data to itself, could it? [00:12:55] Speaker 00: Well, Your Honor, I think if we're talking specifically about a three and a half inch floppy disk that some of us probably used much earlier than that, that may well be the case. [00:13:08] Speaker 00: I don't think the patent is in any way limited in that fashion. [00:13:11] Speaker 00: And additionally, I think to the extent we're talking about written description, Your Honor, we're now well outside the basis for the district court summary judgment or indeed any assertion or finding that was based in a summary judgment ruling. [00:13:27] Speaker 03: What about when the patent talks about the invention? [00:13:31] Speaker 03: It talks about the invention being in some kind of secure full access mode. [00:13:39] Speaker 03: And when it's in secure full access mode, it's the storage management software that encrypts the data. [00:13:48] Speaker 03: I'm talking about the summary of the invention section, as well as the bottom of column three, as well as the bottom of column eight, carrying over to the top of column nine, where the patent talks about the invention. [00:14:09] Speaker 03: consistently talks about the invention having the storage management software using a cryptographic key. [00:14:19] Speaker 00: You're correct, Your Honor, and it does not really talk about where that storage management software has to function or where the storage management software causes encryption. [00:14:29] Speaker 03: It talks about encrypting the data between the computer and the removable storage device. [00:14:34] Speaker 03: And so it's not part of the removable storage device. [00:14:38] Speaker 03: Your Honor is correct. [00:14:40] Speaker 03: We have case law that talks about, when the patent itself talks about how it describes the invention, then we understand the claims in light of those definitive statements about what the invention is that are contained in the specification. [00:15:00] Speaker 00: Well, Your Honor, respectfully, the Court has many cases that make clear that [00:15:05] Speaker 00: the embodiments that are described in the specification are to be imported into the claims absent. [00:15:10] Speaker 03: I agree, but do you agree with me that we have other cases that talk about when the specification describes the invention and says quote unquote the invention is or the present invention is and then it goes on to describe certain features, we understand the claimed invention to have those features. [00:15:27] Speaker 00: The court definitely does have cases of that nature. [00:15:30] Speaker 00: I don't believe that any of this language [00:15:33] Speaker 00: constitutes such a clear and unmistakable statement, limiting the claims in this fashion, particularly where other claims are written expressly to include such limitations, which again, counsels against finding that that was the generic meaning of the language. [00:15:50] Speaker 00: I believe I'm well into my rebuttal time, but I'm happy. [00:15:54] Speaker 01: Well, let's see if there are any more questions. [00:15:56] Speaker 01: at the moment from the panel. [00:15:59] Speaker 04: Can I just ask this question, and I apologize. [00:16:02] Speaker 04: It's not very well formed. [00:16:06] Speaker 04: Is it possible, given the patent's concern about somebody coming in, sticking in some sort of removable storage device and walking away with data, it's a security concern. [00:16:26] Speaker 04: Is that security concern undermined if the walk-away device itself does the encrypting, which might suggest that somebody with access to the walk-away, the removable device after it's been removed, having done the encryption, could then decrypt it? [00:16:49] Speaker 00: I think, Your Honor, the answer to your question is it depends greatly on how that encryption is performed and whether you could, for example, simply decrypt the information with the device without any associated information required from the computer. [00:17:07] Speaker 00: That's not how the devices at issue in this case work. [00:17:12] Speaker 00: Here, the removable hard disks are encrypted and they're referred to as self-encrypting. [00:17:19] Speaker 00: In these systems, in the accused systems, you still would not be able to simply put it in another computer and read it if you're performing the various methods that the claim contemplates. [00:17:32] Speaker 04: Okay, thank you. [00:17:33] Speaker 01: Okay, any more questions at the moment? [00:17:36] Speaker 01: We'll save the rebuttal time. [00:17:38] Speaker 01: All right, we'll hear from Mr. Simons. [00:17:41] Speaker 02: Thank you, Your Honor, and may it please the court. [00:17:43] Speaker 02: I'm David Simons, arguing for Lenovo. [00:17:46] Speaker 02: I'd like to start with the removability issue and specifically talk about specification, the claim language, including the dependent claims, and then the disavow language. [00:17:57] Speaker 02: So as we point out in our brief, the specification only discloses the removable storage devices, 151, being used as the secure storage device that triggers access or no access [00:18:10] Speaker 02: and distinguishes between an authorized and unauthorized user. [00:18:13] Speaker 02: And it never discloses that the hard disk drive 120 is used for that purpose. [00:18:18] Speaker 02: The hard disk drive stores the operating system and additional data. [00:18:22] Speaker 02: Now, Mr. LaDolle pointed to two specification passages that he contends disclose potentially the hard disk drive being the secure storage device that triggers access. [00:18:33] Speaker 02: The first was that passage at column four, line 60 to 62. [00:18:38] Speaker 02: which says, as one of the questions pointed out, doesn't exactly talk about the hard disk drive. [00:18:45] Speaker 02: It just has a statement that, in another embodiment, the storage manager performs method 200 at the request of a user. [00:18:54] Speaker 02: Now, it's important to understand here, method 200 is talking about figure 2. [00:18:58] Speaker 02: And figure 2, in that flow chart in figure 2, is things that take place after [00:19:04] Speaker 02: the storage device has already been detected. [00:19:07] Speaker 02: It's the sensing of the information step and then the access, no access trigger steps. [00:19:12] Speaker 02: So already, by the time you get to this figure two in method 200, you've already finished a detecting step. [00:19:19] Speaker 02: So what I think that last sentence is actually getting to is let's say you have a computer system, and you come up to it, and there's a floppy disk that's already sitting in the drive. [00:19:29] Speaker 02: And you want to know whether that is an authorized secure disk or not before you try saving data to it and walking away. [00:19:35] Speaker 02: What that sentence simply says is that in, for example, that circumstance, the software can trigger the no access check. [00:19:42] Speaker 02: You don't have to take the disk out and put it back in. [00:19:44] Speaker 02: There is nothing in that passage or that paragraph that suggests [00:19:48] Speaker 02: The hard disk drive 120 can be used as the secure storage device for triggering access. [00:19:55] Speaker 02: The second passage that Mr. Ladell mentioned was at the end of column six, beginning of column seven, where it talks about how the hard disk drive can contribute to the encryption key. [00:20:06] Speaker 02: Again, this has nothing to do with the detecting step. [00:20:09] Speaker 02: This has to do with generating that encryption key. [00:20:11] Speaker 02: And the patent talks about how you can use multiple types of information, including manufacturing information, user fingerprint information, user password. [00:20:20] Speaker 02: So again, the fact that you can pull something off the hard drive to contribute to generating encryption key does not go to the detecting step and does not suggest that this fixed hard drive could be the detector. [00:20:33] Speaker 02: So the specification is crystal clear that it's the removable storage device that satisfies the purpose of the invention, and there's no disclosure of a fixed hard drive doing that. [00:20:42] Speaker 02: And the claims are consistent with this. [00:20:44] Speaker 02: This is not one of those cases where the plain language of the claim says one thing, and you need to go to disavow to overcome that, like in Luminara. [00:20:52] Speaker 02: Here, we believe the structure and language of the claims, including the dependent claims, are consistent with the specification. [00:20:59] Speaker 02: The claim language starts with two steps, detecting a storage device within a storage drive, and then, as a separate step, sensing whether the storage device has the security information on it. [00:21:11] Speaker 02: So this structure suggests that you're dealing with a removable storage device, that this claim language is taking the word removable and putting it in structural terms. [00:21:20] Speaker 02: If it's not removable, if it's a fixed hard drive, then that detecting spec becomes entirely superfluous. [00:21:25] Speaker 02: You could just start with sensing whether there's a storage device with security information on it. [00:21:30] Speaker 02: So I think what the judge did here, it was not adding a limitation as Ivy contends. [00:21:36] Speaker 02: It was taking a limitation that was implicit in the structure and language of the claim and making it explicit for the finder of fact, which is what claim construction is all about. [00:21:46] Speaker 02: We had a scope dispute as to whether you look just at the word storage device, or you have to look at the language in the context of the claim, other claim language, and the specification. [00:21:55] Speaker 02: And that's for the judge to resolve before it gets to the finder of fact, even if that means adding language to make something implicit explicit. [00:22:03] Speaker 02: And the Regents case that's cited in the brief talks about that. [00:22:06] Speaker 02: You can take implicit concepts and make them explicit in claim construction. [00:22:10] Speaker 02: And the dependent claims, even though as Judge Tred pointed out, the claim differentiation is not the be all, end all, and it can be overcome, we believe here there actually is no claim differentiation problem. [00:22:23] Speaker 02: And I think it's worth walking through the claims in a bit of reverse order to see that clearly. [00:22:28] Speaker 02: And on page 31 of our red brief, we reproduce claims 46 and 47, which are two of the dependent claims IV sites. [00:22:38] Speaker 02: And we also reproduce a portion of one of the figures that's relevant here. [00:22:43] Speaker 02: So claim 46 says, the computer of claim 39 wherein the storage device is a removable storage medium. [00:22:51] Speaker 02: And then claim 47 also depends from the independent claim 39 and says, wherein the storage device is a data storage diskette. [00:23:00] Speaker 02: And if you look at that portion of figure one that we produced there, it's crystal clear [00:23:04] Speaker 02: Those two dependent claims are talking about the two different types of removable storage devices that are shown in Figure 1. [00:23:12] Speaker 02: There's the CD-ROM, which is a naked removable storage medium. [00:23:16] Speaker 02: And then there's the diskette, which would be Claim 47. [00:23:18] Speaker 02: So now, if you go to Claims 28 and 29, which are reproduced on two pages earlier in our brief on page 29, it's similar, but there's one difference that makes it a little bit trickier. [00:23:30] Speaker 02: But again, the principle holds. [00:23:32] Speaker 02: Claim 28, which depends from 18, talks about the encrypted data being written to a removable storage medium. [00:23:40] Speaker 02: And claim 29 talks about it being written to a data storage diskette. [00:23:44] Speaker 02: The one difference here is that claim 29, for whatever reason, depends from claim 28, as opposed to in 46 and 47, where they're mapped onto those two different embodiments. [00:23:54] Speaker 02: But again, the differentiation still holds here. [00:23:58] Speaker 02: Claim 28 narrows 18 by requiring that the data either be written to a removable storage medium like the CD-ROM, or if it's written to a diskette, it has to be written to the removable medium portion of the diskette, the medium portion, as opposed to, say, writing it to a separate chip on a storage device. [00:24:18] Speaker 02: And the patent actually does have disclosure where it talks about having a separate chip in the storage device for holding information. [00:24:25] Speaker 02: So claim 28. [00:24:26] Speaker 04: Where is claim 18? [00:24:28] Speaker 04: Where is that? [00:24:29] Speaker 02: He said. [00:24:31] Speaker 02: So let's see. [00:24:31] Speaker 02: We cite that in the brief. [00:24:37] Speaker 02: Let's see, it talks about column 5, lines 52 to 54, talks about how data or information can be put on a storage device. [00:24:47] Speaker 02: So claim 28, even if it's directed to the storage diskette is one of the possibilities, is still narrower than claim 18 by requiring that the data be written to a removable storage medium as opposed to generally to the storage device. [00:25:02] Speaker 02: So the patentee here changed language when going from 18 to 28 [00:25:06] Speaker 02: from the storage device to storage medium, which narrows the claim. [00:25:13] Speaker 04: So the column five, line 52, et cetera, business, is that really talking about the computer storing data on the chip? [00:25:29] Speaker 04: Isn't it just saying where the computer might find the identifying information? [00:25:36] Speaker 04: Right. [00:25:37] Speaker 02: I mean, it's not. [00:25:38] Speaker 04: Right. [00:25:38] Speaker 04: So why does that help you? [00:25:42] Speaker 02: Well, it does show that there is a possibility, at least, of something on a storage device that can hold data other than the medium. [00:25:50] Speaker 02: And so it at least creates that possibility, which is then foreclosed by claim 28. [00:25:57] Speaker 02: So it is a bit awkward the way 28 and 29 are written. [00:26:00] Speaker 02: And honestly, it's quite possible here that the drafter meant for claim 29 to depend from 18, as he did for 46 and 47. [00:26:09] Speaker 02: But even if this was the intention, it does narrow the claim. [00:26:12] Speaker 02: 28 narrows 18, and 29 narrows 28. [00:26:17] Speaker 02: And that is what the Enzo case talks about, is that if the claims are already narrowed, then the claim differentiation argument loses its potency, because the claims are already differentiated. [00:26:27] Speaker 02: So we believe that even if the court looks to claim differentiation here, it actually does not support Ivy's position because the claims are already narrowed. [00:26:38] Speaker 02: So in addition to the claim language and the specification, there is that straight disavow language that the justice court relied on for her opinion. [00:26:46] Speaker 02: And I think it's important to break it down a little bit because Ivy tries to make a lot out of the word allows. [00:26:52] Speaker 02: So the first of the five passages that we cite in our brief says, the present invention allows storage device 151 to be used as an access card by which the user gains access to sensitive data of the organization. [00:27:06] Speaker 02: So the present invention allows. [00:27:07] Speaker 02: It doesn't say this embodiment allows. [00:27:10] Speaker 02: It doesn't say the example allows. [00:27:12] Speaker 02: It doesn't say what's shown in Figure 1 allows. [00:27:14] Speaker 02: It says the present invention allows the storage device to be used as an access card. [00:27:19] Speaker 02: So by the same token, if you have a storage device that cannot act as an access card because it's fixed into the computer system, then it would not allow the storage device to be used as an access card. [00:27:32] Speaker 02: And it would not be the present invention. [00:27:34] Speaker 02: It would be something else. [00:27:36] Speaker 02: So that present invention language, the patentee chose that language and links the removable concept to the words present invention. [00:27:43] Speaker 02: And there are many other passages we cite too, including the one that starts with according to the invention and then links it directly to removable. [00:27:50] Speaker 02: So we believe that those disavow passages even alone would be enough to affirm what the district court said. [00:27:57] Speaker 02: But we believe it's actually consistent with the specification and the other claim language. [00:28:03] Speaker 02: So if there are no other questions on removability, I can turn to the summary judgment issues. [00:28:09] Speaker 02: OK. [00:28:09] Speaker 02: OK. [00:28:11] Speaker 02: So Mr. Ladell talked about the claims 15 and 18 language that district court relied on. [00:28:16] Speaker 02: And we believe that it's very clear that it is not the storage device that's doing encryption, that encrypted data is written to the storage device. [00:28:26] Speaker 02: So it makes no sense. [00:28:27] Speaker 02: that this undisclosed embodiment of where you would put clear text onto a storage device and then encrypt it later would be something that's covered by the patent. [00:28:37] Speaker 02: It's not consistent with the claim language or with anything in the specification or the purpose. [00:28:41] Speaker 02: It doesn't make any sense. [00:28:43] Speaker 04: And so that alone... Let's break that down a little bit. [00:28:50] Speaker 04: With claim 18, you have, it seems to me, [00:28:53] Speaker 04: much more straightforward language support for your argument than with claim 15. [00:29:04] Speaker 04: Why does it not make any sense, I think that was the third of your little trio of reasons, plain and something in the middle, and why does it not make sense to read the claim to mean that the actual writing [00:29:23] Speaker 04: must be of encrypted data, full stop, without saying where the encryption occurs. [00:29:34] Speaker 02: Well, because the two words in claim 15, during and to, I think preclude the possibility of putting on the storage device unencrypted data and then encrypting it. [00:29:47] Speaker 02: It says encrypting digital data during. [00:29:51] Speaker 02: So if you put plain text onto it, then during a write access, the access, the word access I think is important there too, is that it's not consistent with the language, particularly read in light of the specification, to have plain text put on a storage device and then later written to a different part of the storage device in an encrypted form. [00:30:12] Speaker 04: You keep asserting it without at least giving what's registering in my mind as a reason to understand why that did so. [00:30:22] Speaker 02: So encrypting digital data during a write access. [00:30:25] Speaker 02: So if you're encrypting it after the write access, after you've already put it on the storage device. [00:30:31] Speaker 04: The write access is the entire process that starts with, and here maybe it's useful to look at the figure you helpfully included at the top of page 38 of your red brief. [00:30:43] Speaker 04: So the host controller is sending to a Seagate disk drive [00:30:51] Speaker 04: data with a command, and the command says, write this stuff. [00:30:58] Speaker 04: And that figure shows that inside the disk drive, there's several different processes. [00:31:05] Speaker 04: Why isn't the whole set of those processes a write access in which the last step, as I think the caption says, [00:31:16] Speaker 04: the storage meeting is encrypted by the disk drive before being written. [00:31:20] Speaker 04: That last little box, read, write, and storage control to the storage. [00:31:26] Speaker 04: Why does it not make sense to have the plain text data sent over with a command, write this, and the first thing the disk drive does is encrypt it, and the second thing it does is once it has the data encrypted, [00:31:46] Speaker 04: put it onto the set of magnets or something that will hold it. [00:31:54] Speaker 02: Okay, well it's not limited to writing. [00:31:56] Speaker 02: The claim doesn't say writing to the magnets. [00:31:59] Speaker 02: It talks about writing encrypted data to the storage device. [00:32:03] Speaker 02: So if you've already transferred the plaintext over, and now you've turned everything over to the storage device, you've already written unencrypted data to the storage device. [00:32:11] Speaker 04: It's there. [00:32:12] Speaker 04: You just assert that, but that does not seem to follow as a matter of language. [00:32:17] Speaker 02: So it would be too different. [00:32:19] Speaker 02: I mean, there's already a writing step where it's already been sent to the storage device. [00:32:24] Speaker 02: That itself is writing to this. [00:32:26] Speaker 04: That's the sending as part of a multi-step process [00:32:29] Speaker 04: all of which is the write access, only the last bit of which is the writing. [00:32:38] Speaker 02: Well, I understand your honor's point. [00:32:40] Speaker 02: But I think, read in light of the specification, it would not make sense to deliver clear text to the storage device and then have the storage device. [00:32:48] Speaker 04: Let's elaborate on that point. [00:32:49] Speaker 04: Why would the security purpose? [00:32:52] Speaker 04: This gets at the inarticulate question I asked at the end of your colleague's argument. [00:32:59] Speaker 04: Why would it not make sense in light of the security purpose of this for the removable device to be doing the encryption? [00:33:11] Speaker 02: Well, there isn't any disclosure of that possibility. [00:33:14] Speaker 02: And none of the storage devices that are disclosed in the patent suggests that that, especially in 1999, if there was that sort of possibility, that it talks about the device that someone can walk away with having the encrypted data on it. [00:33:28] Speaker 02: And so at some point here, you would have unencrypted data on that storage device, whether it's on the magnets or on something else in the storage device, you've delivered unencrypted data. [00:33:40] Speaker 02: All right, so I see my time's expired. [00:33:42] Speaker 02: And I also do want to make sure that the court looks at the other non-infringement argument we make, the storage drive issue. [00:33:47] Speaker 02: Because I believe there just was no response to that from IV, that the storage drive itself, or the storage drive, does not meet what the claim that this court construed to be a storage drive. [00:33:59] Speaker 02: Because it's not a physical device that reads and writes from what they call the storage device. [00:34:04] Speaker 02: So with that, I'll end. [00:34:05] Speaker 02: Thank you. [00:34:06] Speaker 01: Are there any more questions for Mr. Simons? [00:34:12] Speaker 01: Okay, hearing none, Mr. Liddell, you have your rebuttal time. [00:34:21] Speaker 01: Are you on mute? [00:34:24] Speaker 00: Sorry about that. [00:34:25] Speaker 00: Thank you, Your Honor. [00:34:27] Speaker 00: I do want to address a couple of the points raised by my friend's argument. [00:34:31] Speaker 00: First, the discussion of claims 28 and 29 [00:34:37] Speaker 00: It was suggested basically that the claims should be read as though one claim dependent from another was in fact claiming two distinct things. [00:34:49] Speaker 00: That argument was made about claims 46 and 47, which don't depend from one another, but suggested that it also applied to claims 28 and 29. [00:34:58] Speaker 00: That's really not a very sensible way to read that language. [00:35:02] Speaker 00: Claim 29 recites [00:35:04] Speaker 00: an encrypted digital, excuse me, a data storage diskette as a species of a removable storage medium. [00:35:12] Speaker 00: It's one kind of removable storage medium. [00:35:15] Speaker 00: That's the nature of nested dependent claims. [00:35:18] Speaker 00: And that's consistent with the teaching in the patent that there are many possible kinds of removable storage media. [00:35:24] Speaker 00: One of them is a data storage diskette. [00:35:26] Speaker 00: Another kind of removable storage media is a CD-ROM. [00:35:30] Speaker 00: Yet another would be what's referred to and described in the patent as a super disk. [00:35:34] Speaker 00: All of those are removable storage media. [00:35:37] Speaker 00: The point is, Claim 28 is adding the use of a removable storage media as a further limitation to Claim 18, which has, we think, very clear indications that the patentee didn't intend to suggest that Claim 28 was somehow different from, or excuse me, that Claim 18 was somehow already having that limitation in it. [00:36:01] Speaker 00: Similarly, there was a lot of discussion of passages that the present invention allows something. [00:36:09] Speaker 00: Those are statements about possible uses, not limitations of the invention. [00:36:13] Speaker 00: If I had a patent on a steam engine, I might write that the present invention of my steam engine allows one to power a watercraft through the water. [00:36:25] Speaker 00: That doesn't mean that a steam engine isn't a steam engine if you put it instead in use in a locomotive. [00:36:31] Speaker 00: a possible use. [00:36:32] Speaker 00: It allows that use. [00:36:33] Speaker 00: That doesn't mean it's a restrictive statement. [00:36:36] Speaker 00: And that's important when we look at the court's case law about not finding disclaimers where there's not language of manifest exclusion. [00:36:46] Speaker 00: Obviously, the court's cases are clear that that's a fine balance to be struck, but here we submit that the entirety of the patent and the specification and the claims [00:36:57] Speaker 00: indicates that that additional restriction was not a disclaimer, that there was not a disavowal of claim scope here. [00:37:05] Speaker 00: And finally, on the issue about the location of encryption claim elements, I do want to pick up on something. [00:37:15] Speaker 00: I think Judge Toronto may have commented that the analysis was different for claims 15 and 18 potentially. [00:37:25] Speaker 00: I think that's correct. [00:37:26] Speaker 00: We don't believe that this is a proper restriction on either one, but I think it's particularly difficult to make that argument for claim 15, which is reciting merely during a right access. [00:37:40] Speaker 00: There was no construction either offered or requested of right access to suggest that it's somehow limited in the way counsel tried to argue. [00:37:48] Speaker 00: I think it was correctly pointed out that that entire process might be a right access [00:37:55] Speaker 00: And that as long as encryption takes place during that process, that's what the claim requires. [00:38:00] Speaker 00: We submit that that's true and there's really no dispute that there was evidence in the record before the district court that that's what happens in the accused devices. [00:38:09] Speaker 00: Under those circumstances, we think that the district court's further restriction was completely inappropriate and that summary judgment was unwarranted. [00:38:16] Speaker 04: Can I just ask you a procedural question? [00:38:19] Speaker 04: Are there invalidity challenges in this case or once were? [00:38:23] Speaker 04: I assume, yes. [00:38:25] Speaker 00: So, Your Honor, the answer to your question is there were no invalidity challenges raised as a matter of summary judgment, so no... I'm sorry, but if they're in the case, then we don't have a final judgment. [00:38:41] Speaker 00: That is correct, and we don't submit that the court can enter a final [00:38:45] Speaker 00: I guess maybe I'm misunderstanding. [00:38:47] Speaker 00: The court dismissed as moot any remaining issues, if that's your question. [00:38:52] Speaker 04: Yes, and were there invalidity counterclaims? [00:38:55] Speaker 00: There were invalidity contentions as a matter of defense. [00:38:59] Speaker 00: They were somewhat limited because of IPR estoppel here, as my recollection, although I may be misspeaking. [00:39:06] Speaker 04: Do you recall, do they include a written description? [00:39:09] Speaker 00: I do not believe there was a written description contention here, Your Honor, but to be perfectly candid, I don't remember the precise contours of those. [00:39:18] Speaker 01: Okay, thanks. [00:39:23] Speaker 01: Any more questions in the panel? [00:39:27] Speaker 01: Nope. [00:39:28] Speaker 01: Hearing none, the case is taken under submission with thanks to both counsels. [00:39:33] Speaker 00: Thank you, Your Honor. [00:39:36] Speaker 00: Thank you, Your Honor.