[00:00:00] Speaker 03:
The next case for argument is 21-1075, Comm Software versus NetApp.

[00:00:06] Speaker 03:
Mr. Farnham, here we go again.

[00:00:08] Speaker 02:
In your case, Your Honor, the former bonus you found in the litigation like OPEC reference did directly determine that the boss included common evidence in the new claims.

[00:00:26] Speaker ?:
Let me start with OPEC and the central issue here.

[00:00:32] Speaker ?:
This is a question of what the term portion means in these slides.

[00:00:38] Speaker 02:
For our construction, portion has to mean something less than a whole.

[00:00:43] Speaker 02:
And when you look at what this invention is about, it is about providing some sort of right access while there are restrictions on other portions.

[00:00:50] Speaker 02:
So you can write access.delete, write access.rename, things of that nature.

[00:00:56] Speaker 02:
OPEC is essentially a worm application that locks down tracks.

[00:01:01] Speaker 02:
So there are two ways OPEC works.

[00:01:03] Speaker 02:
One, it can wait until the track is filled, and then it locks it down.

[00:01:06] Speaker 02:
As the board probably found tracks aren't files, so that doesn't provide a description of the invention.

[00:01:13] Speaker 02:
The other thing it does, and the board relied more on, was OPEC could wait until there's an entire file written, and it would lock down all the tracks that file was in.

[00:01:21] Speaker 02:
The problem with this is that it's not locking down these portions.

[00:01:25] Speaker 02:
and not providing access, then it is simply saying everything in the house is essentially read-only.

[00:01:30] Speaker 02:
There's no right access of any kind.

[00:01:33] Speaker 03:
But the claim, I mean, I get your point.

[00:01:35] Speaker 03:
And we see all kinds of cases where does the smaller part necessarily mean that the covers it.

[00:01:41] Speaker 03:
So it comes in all different flavors.

[00:01:43] Speaker 03:
We've got the Hewlett-Packard case, which seems close to this one.

[00:01:46] Speaker 03:
But the claim language here doesn't require that only a portion be restricted.

[00:01:53] Speaker 03:
so long as the entire file is restricted, which is OFEC.

[00:01:58] Speaker 03:
So as long as the entire file is restricted, a portion necessarily is.

[00:02:03] Speaker 03:
And why isn't that take on it consistent with the claim language?

[00:02:11] Speaker 02:
Because what is being done there is having to make a distinction between parts of the claim, because it would be restricted all of it.

[00:02:22] Speaker 02:
Then the invention error, and with the spreading patents, it doesn't work.

[00:02:27] Speaker 02:
The entire file is locked down.

[00:02:31] Speaker 02:
There's no kind of right access to anything to it.

[00:02:33] Speaker 02:
Then you haven't done the invention.

[00:02:35] Speaker 02:
It's only if you do a step where there's a portion, there's something less in the whole.

[00:02:38] Speaker 03:
But the claim doesn't necessarily require only a portion.

[00:02:42] Speaker 03:
It says a portion, but it doesn't require only a portion.

[00:02:46] Speaker 03:
So if we were in a claim construct, if we were in an infringement situation in district court,

[00:02:52] Speaker 03:
and you came in as the patent owner and said there's infringement on this, the other, someone else's infringes, and that's because they have the entire thing, but necessarily that includes a portion, that would be a pretty persuasive argument, would it not?

[00:03:09] Speaker 02:
Yeah, I disagree.

[00:03:11] Speaker 02:
I don't think that would infringe you.

[00:03:13] Speaker 02:
These are steps in a method way, and one of those steps is you have to provide a restriction to a portion as they step, as they think.

[00:03:19] Speaker 02:
So that makes a difference in the cases where you're talking about where it's just sort of an entire thing and the whole thing becomes, you know, in here, maybe you could go through and you could continue to put all those pieces together, but it's a method claim and it's a step.

[00:03:34] Speaker 02:
And one of those, it has to be done in pieces.

[00:03:37] Speaker 02:
I would agree it doesn't stop, the claim does not say, you know, you can in additional ongoing steps continue to do this, but it has to be reported.

[00:03:47] Speaker 02:
And I don't want to say that

[00:03:49] Speaker 02:
reason the other way also it says look at what this invention is about you know it can't provide anything like you know right after you start renaming

[00:04:03] Speaker 02:
If he does, he would lock it all down.

[00:04:08] Speaker 05:
Mr. Farnham, could you explain why your case in dealing with the term portion is different from Hewlett-Packard, which also dealt with the term portion?

[00:04:20] Speaker 05:
And in that case, this court said doing a final scan of a portion of a picture can be satisfied by

[00:04:30] Speaker 05:
doing a scan of the full picture.

[00:04:34] Speaker 05:
Because when you're doing a scan of the full picture, you're also necessarily doing a scan of the claimed portion of the picture.

[00:04:43] Speaker 05:
So why wouldn't that logic apply here?

[00:04:46] Speaker 05:
where we're dealing with a restriction on alteration of a portion of a file and why wouldn't that be satisfied by a restriction on an alteration of the entire file because that restriction on the entire file necessarily is restricting alteration of any portion of the file and then some.

[00:05:16] Speaker 02:
For the reason I just explained, Your Honor, and the difference here is in HP, you could actually scan the whole thing and you could pull that portion out later.

[00:05:25] Speaker 02:
You just get to the portion part.

[00:05:27] Speaker 02:
If you lock an entire file down in this case, you don't have the portion, right?

[00:05:32] Speaker 02:
The HP page is factually, you know, in the case where if you scan all the thing, the other portions are in there.

[00:05:40] Speaker 02:
Here, you know, and it does that in a day, you know,

[00:05:44] Speaker 02:
You can then still go through and see if you can get that portion that you need, right?

[00:05:48] Speaker 02:
You just don't get to the heart of the invention out of HP.

[00:05:51] Speaker 02:
Here, you can't do that if you just lock it all down.

[00:05:55] Speaker 02:
You can't do the things that the invention is trying to allow them to do, versus coming out and reading this, but not read these claims and think, oh, this plant's telling me I want to be able to provide right access and stuff in different forms.

[00:06:09] Speaker 05:
I guess you're asking us to construe portion here to mean a portion and only a portion of the file?

[00:06:23] Speaker 02:
Portion meaning, yes.

[00:06:24] Speaker 02:
Something else in the hell, yes.

[00:06:27] Speaker 02:
And I think the plain meaning is a term portion.

[00:06:30] Speaker 04:
Do you have a way of moving beyond what you say is the plain meaning?

[00:06:41] Speaker 04:
Can you connect your, I think, assertion that this invention doesn't work, I think, some language like that that you started with, to language in the background of the invention section that says, here's the problem we're solving.

[00:06:59] Speaker 04:
Here is what we can do that the prior art was not able to do, and why that idea,

[00:07:13] Speaker 04:
to what I think you keep saying, which is the heart of the invention, I think you used that term, requires a true proper subset of the file, not the complete file, so to use mathy language, a proper subset, to be restricted.

[00:07:36] Speaker 02:
So the specification, I can get you the exact site during my call,

[00:07:43] Speaker 02:
The specification talks about things like providing write access without renaming write access, without issuing permissions, things like that.

[00:07:54] Speaker 02:
I can give you the exact site photos they are.

[00:07:56] Speaker 04:
Well, first explain.

[00:07:57] Speaker 04:
Forget about the sites.

[00:07:58] Speaker 04:
Just explain it and just explain why you think the heart of the invention here requires a focus on proper subsets of files, not entire files.

[00:08:18] Speaker 02:
Also, this is a, the invention here is described as allowing restrictions to be placed on a file that permits access to portions of it.

[00:08:33] Speaker 02:
It's how the whole patent describes this invention is with claim state.

[00:08:39] Speaker 05:
Okay.

[00:08:39] Speaker 05:
The claim is broad enough that when it says portion, it's literally any portion.

[00:08:47] Speaker 05:
no matter how big, how small, and I guess in your view also includes not only the data, but the metadata.

[00:08:58] Speaker 05:
It's not directed to solely the file access date or the name of the file as understanding the term portion as it's used in the claim, right?

[00:09:15] Speaker 02:
The specification talks about things like right access without change in permission.

[00:09:21] Speaker 02:
And so yes, that would probably be more part of the metadata.

[00:09:25] Speaker 05:
But the claim isn't restricted to that, to that example in the specification.

[00:09:31] Speaker 05:
That's my point.

[00:09:32] Speaker 02:
No, the claim is not restricted like that.

[00:09:34] Speaker 05:
It could be any portion.

[00:09:37] Speaker 05:
And it's also any portion of metadata.

[00:09:46] Speaker 02:
I believe that's correct, Your Honor, if I understand your question.

[00:09:49] Speaker 02:
Yes.

[00:09:51] Speaker 05:
OK.

[00:09:53] Speaker 02:
The plane itself did not contain any distinctions.

[00:09:57] Speaker 02:
And our closed construction does not drive those distinctions.

[00:10:04] Speaker 01:
If there are no further questions on this, I'll just reserve the rest of my time.

[00:10:10] Speaker 03:
OK.

[00:10:11] Speaker 03:
Thank you.

[00:10:13] Speaker 03:
Okay, Ms.

[00:10:14] Speaker 03:
Kessel, please proceed.

[00:10:17] Speaker 00:
Good morning, Your Honors, and may it be support.

[00:10:20] Speaker 00:
COM's 864 patent is all about restricting file access.

[00:10:25] Speaker 00:
Using software to make a read-write storage medium, so something that can be written too many times, behave like a read-only storage medium.

[00:10:34] Speaker 00:
And COM, or NetApp, excuse me, filed a petition with different mappings challenging COM's claims to this technology.

[00:10:41] Speaker 00:
COM has appealed from one of those mappings, the OFEC-based mapping, and NetApp has appealed from another, a Vawson-based mapping.

[00:10:49] Speaker 00:
And starting first with Com's appeal, Com raises three issues with respect to claims.

[00:10:54] Speaker 03:
Well, can you address the same portion?

[00:10:57] Speaker 03:
I understand we have a case hewlett-packer, but words mean something in these claims.

[00:11:04] Speaker 03:
And when you say portion, and it says the same portion of each file, why isn't it absolutely clear that the plain and ordinary meaning of portion is something less than the whole?

[00:11:17] Speaker 03:
And therefore, why would we necessarily require the patent owner to say same portion and only a portion, rather than just using the word portion?

[00:11:30] Speaker 00:
Yes, Your Honor.

[00:11:31] Speaker 00:
COM's position of portion meaning less than the whole has some superficial appeal, but it's unsupported by the claim language.

[00:11:38] Speaker 00:
If you look at claim three,

[00:11:40] Speaker 00:
which depends from claim one.

[00:11:42] Speaker 00:
It resides several specific examples of the restrictions that are contemplated in claim one.

[00:11:48] Speaker 00:
And for example, one of those restrictions is a write access without delete restriction.

[00:11:54] Speaker 00:
And this is something that applies to the entire file, as explained in the specification at appendix 37, column 8, line 6 through 23.

[00:12:04] Speaker 05:
This shows that the- This is a rationale that the board didn't rely on, right?

[00:12:09] Speaker 05:
This claim 3, claim 6 argument is to try to re-understand the meaning of portion as it's used in claim 1.

[00:12:17] Speaker 00:
That's correct.

[00:12:18] Speaker 00:
The board did not construe the term portion.

[00:12:21] Speaker 00:
But it noted the fact that your honors raised earlier that, regardless of how portion is construed, so whether you agree with NAP's position that the claim language and specification supports everything up to and including the entire file, or just COM's position about it being less than the entire file, there is no language in the claims that excludes additional portions from also being restricted.

[00:12:42] Speaker 00:
And it's similar to the HP case, again, that your honors mentioned.

[00:12:45] Speaker 00:
That's the rationale that the board grasps onto and there is no need to specifically construe portion if you go in that direction.

[00:12:53] Speaker 03:
So let me understand.

[00:12:54] Speaker 03:
The board's rationale is that it does mean portion, but there could be however many portions are necessary to result in the entire thing?

[00:13:05] Speaker 03:
Is that the board's?

[00:13:06] Speaker 03:
Is that?

[00:13:06] Speaker 00:
The board did not formally construe the term portion.

[00:13:09] Speaker 00:
It noted that the claims do not exclude.

[00:13:11] Speaker 00:
So even if the board were to adopt comp's position and portion meant less than the whole, the claims do not exclude other portions from also being restricted.

[00:13:20] Speaker 00:
And there's no dispute that the OFEC prior art reference contemplates, discloses, entire files being restrictive.

[00:13:26] Speaker 00:
So it did not make a formal holding or construction for the term portion specifically.

[00:13:32] Speaker 00:
So that was beside the point.

[00:13:34] Speaker 00:
Regardless of which construction is adopted, OFEC still teaches the claim element.

[00:13:38] Speaker 04:
So I understand.

[00:13:40] Speaker 04:
But the board said, if you do something to an entirety, you're doing it to each part.

[00:13:45] Speaker 00:
Yes, the board did that.

[00:13:45] Speaker 04:
Did that full stop?

[00:13:46] Speaker 00:
Full stop, correct, Your Honor.

[00:13:51] Speaker 05:
Turning to Com's second argument for the- Just so I understand, in your view, for Com's argument to actually work, the claim would actually have to say portion and only a portion?

[00:14:07] Speaker 05:
They'd have to double down on their recited portion?

[00:14:11] Speaker 00:
Yes, Your Honor.

[00:14:12] Speaker 00:
And respectfully, Com has not officially said the limitation is limited to only a portion.

[00:14:17] Speaker 00:
They've just said it means less than the entire file.

[00:14:20] Speaker 00:
And again, the claims do not exclude other portions from also being restricted.

[00:14:25] Speaker 00:
So yes, Com would have to double down on its only a portion argument that's raised here today.

[00:14:34] Speaker 04:
And your point about claim three, whether taken as a point about the proper construction or a point about the unreasonableness of this simple what you do to the whole, you do to each part.

[00:14:50] Speaker 04:
is that at least one of the restriction choices enumerated in claim three is one that makes sense only as to the entirety?

[00:15:06] Speaker 04:
Is that right?

[00:15:07] Speaker 00:
That is correct.

[00:15:08] Speaker 04:
Why is that right access without delete?

[00:15:15] Speaker 04:
Why does that make sense only as to the entirety of the file?

[00:15:20] Speaker 00:
So, Your Honor, if you look at Appendix 37, Column 8, Line 6-23, the concept of delete is discussed... Sorry, Column 8, Line 6-23?

[00:15:34] Speaker 04:
Okay, that paragraph, yeah.

[00:15:36] Speaker 00:
Yeah, so that first full paragraph starting at Line 6, it talks about, specifically at Line 11, delete being an operation to obfuscate or overwrite a file.

[00:15:47] Speaker 00:
Then again at line 18 delete operation for a file and then again at line 22 So all of this in column 8 a file deletion So deletion is tethered necessarily to the entire file and not just a portion of the file.

[00:16:01] Speaker 04:
Was there a dispute about whether

[00:16:05] Speaker 04:
about whether the right access to delete could be something you do to a portion of a file or was it accepted that that treats a file as a indivisible unit.

[00:16:18] Speaker 00:
That was not a point of dispute before the board during the IPR.

[00:16:21] Speaker 05:
That's because it wasn't presented

[00:16:24] Speaker 05:
This specific argument no because again, right the board never had an opportunity to consider this argument about how to understand portion and claim one in light of this reference of about right access without delete and claims three and six and

[00:16:41] Speaker 00:
Well, respectfully, Your Honor, NetApp raised this argument.

[00:16:44] Speaker 05:
Raised something in your reply, making a reference to the specification, but you never invoke claims three and claims six, and then tried to say, look at all the claims as a whole when you read dependent claims three and six in light of claim one.

[00:16:55] Speaker 05:
We necessarily must understand portion to actually refer to the entire file, because claims three and claims six recite

[00:17:02] Speaker 05:
write access without delete.

[00:17:04] Speaker 05:
And delete is defined in the specification.

[00:17:08] Speaker 05:
The patent owner was a lexicographer and said that can only be referencing deleting the entire file.

[00:17:15] Speaker 00:
Respectfully, Your Honor, the dependent claims were discussed at the oral hearing at Appendix 1081 to 1082.

[00:17:20] Speaker 05:
You were talking about the reply, though, right?

[00:17:22] Speaker 00:
Well, regardless, a party is able to rely on anything in the specification to support an existing construction, and this has been a construction that NetHEP has argued since the petition.

[00:17:32] Speaker 00:
That portion can be anything less than up to and including the entire file.

[00:17:39] Speaker 00:
It has submitted a number of different pieces of evidence in support of that construction, including the reference to column 8 and appendix 37 of the specification, the dependent claims during the oral hearing as well, and again in its briefing before this court.

[00:17:57] Speaker 00:
Turning to the second issue, the restricting access limitation.

[00:18:02] Speaker 00:
COM tries to distinguish between files and tracks to argue that OFEC does not disclose restricting file access, but substantial evidence supports the board's finding that OFEC discloses an embodiment where insurance and medical files are immediately converted to a read-only state when they are written to the storage medium.

[00:18:23] Speaker 00:
This is at appendix 361, column 8, lines 26 through 39.

[00:18:29] Speaker 00:
And as the board found, this embodiment makes OPEX tracks files distinction irrelevant.

[00:18:36] Speaker 00:
So COM's only remaining argument here is that this embodiment makes a read-write storage medium behave like a read-only storage medium, which, as we discussed before, is actually the entire point of the 864 patent.

[00:18:48] Speaker 00:
And there's no dispute that OFEC discloses an actual storage medium that is a read-write storage medium.

[00:18:56] Speaker 00:
Third, COM has said it is unclear if the board found OFEC anticipates or renders obvious claims one through three.

[00:19:03] Speaker 00:
But Com admits in its blue brief at page 22 that, quote, the board states Ilfgaard anticipates.

[00:19:09] Speaker 00:
Com is simply disagreeing with the board's factual findings regarding anticipation.

[00:19:15] Speaker 00:
And then unless the court has any further questions on the main appeal, I would like to briefly touch on the cross appeal.

[00:19:23] Speaker 00:
There are six claims at issue in the cross-appeal.

[00:19:26] Speaker 00:
The court does not have to address any of these arguments for claims one through three if it affirms comms appeal.

[00:19:32] Speaker 00:
Claims five, six, and nine, however, remain at issue.

[00:19:37] Speaker 00:
And if I can direct the court's attention to Voss and figure four, which is on appendix 367.

[00:19:47] Speaker 00:
During the IPR,

[00:19:48] Speaker 00:
NetApp argued that Boston's entire file system, so this is what's shown as file system D, hearing figure four, D as in dog.

[00:19:58] Speaker 00:
NetApp mapped that entire file system to the logical storage medium.

[00:20:04] Speaker 00:
It then presented two different arguments using file system D in two different ways.

[00:20:09] Speaker 00:
For the first mapping.

[00:20:11] Speaker 05:
What page of the petition are we referring to?

[00:20:13] Speaker 05:
In which volume of the JA?

[00:20:16] Speaker 00:
For the Boston reference or the petition?

[00:20:19] Speaker 05:
Well, you want to say you raised two arguments in the petition.

[00:20:22] Speaker 00:
OK, fair enough.

[00:20:23] Speaker 05:
So that's what we're looking for.

[00:20:25] Speaker 00:
If you turn to appendix page 84 and 85, that's where this nothing is discussed in the petition.

[00:20:34] Speaker 00:
And it is again discussed at appendix page 71 to 874 in the reply.

[00:20:44] Speaker 00:
And it's again discussed at appendix pages 1084 to 1090 and 1145 at the oral hearing.

[00:21:00] Speaker 04:
Just to understand, is this ultimately

[00:21:05] Speaker 04:
a question, or at least is it sufficient for the board to be affirmed, to ask the question, did the board abuse its discretion in reading your petition not actually to make the argument for, that you eventually, and that the argument you're now making may be or may be not made in the reply, but

[00:21:32] Speaker 04:
We have said that the board's reading of what is fairly explained by the petition is we assess under an abusive discretion standard.

[00:21:46] Speaker 04:
And I guess I'm having a hard time seeing an abusive discretion for how the board read your petition is not really making the argument you're now making.

[00:21:56] Speaker 00:
Perspectively, Your Honor, the board did not address whether the argument was timely raised or not, and it is clear the board and the parties engaged in a discussion about two different mappings.

[00:22:08] Speaker 00:
One about going outside of file system D to other multiple file systems, and another mapping about staying inside file system D, the same singular file system.

[00:22:18] Speaker 00:
The board's final written decision.

[00:22:21] Speaker 04:
When you say the party's engaged in discussion, that encompasses multiple stages.

[00:22:25] Speaker 04:
The board is entitled to say the only one that matters, at least in one direction, is the petition.

[00:22:33] Speaker 04:
And if I don't see it there, I truly am not obliged to pay attention to anything that came later, because all of that would be new.

[00:22:42] Speaker 00:
The board did not make any findings specifically on that issue, Your Honor.

[00:22:45] Speaker 00:
And respectfully, we request at the very least that this court vacate a remand so the board can at least assess the timeliness question or whether the argument was actually raised.

[00:22:55] Speaker 00:
But here, throughout the petition, the various citations I've provided already,

[00:23:00] Speaker 00:
We did provide and submit two different arguments one about going outside one about going inside The final written decision only talks about going outside.

[00:23:08] Speaker 03:
So the board I know there's no requirement that you seek reconsideration But did you see reconsideration here on this basis?

[00:23:16] Speaker 00:
We did not see preparing your because you think that

[00:23:23] Speaker 03:
to consider an argument that that would be the kind of thing that would be cleaned up necessarily, probably in the interest of both parties, if you filed a motion for reconsideration, at which point the board would be forced to deal with an issue.

[00:23:37] Speaker 03:
We don't know whether they thought about it and thought it wasn't properly raised, whether they looked at the petition and didn't even see it.

[00:23:45] Speaker 03:
So a remand seems like a less efficient manner to get this cleaned up than a motion for reconsideration, right?

[00:23:53] Speaker 00:
uh... as you noted yourself your honor there is no requirement that a party seeks a hearing before raising the issue in an appeal and uh... we do submit that the argument was clearly presented throughout the various papers and at the oral hearing and the board's complete failure to address any argument about inside whatsoever.

[00:24:11] Speaker 04:
Can you get back and let's just focus on the petition.

[00:24:15] Speaker 04:
So I'm looking I guess at appendix eighty-four to eighty-five.

[00:24:18] Speaker 04:
Is that the right place for me to be looking for?

[00:24:21] Speaker 04:
And the carryover sentence, I think, is worth one sentence, two sentences, one sentence.

[00:24:26] Speaker 00:
Yes, Your Honor.

[00:24:28] Speaker 04:
And I have a, I mean, not just that I find, I mean, I guess I just think it's really pretty darn clear there that you're not talking about the inside the restriction hierarchy.

[00:24:45] Speaker 04:
that you're saying Wasson doesn't restrict things outside.

[00:24:49] Speaker 04:
Willman provides a tool which is just about the tool for doing what has just been described, which is all outside.

[00:25:00] Speaker 00:
Admittedly, this may not be a model of clarity, and the words outside and inside are not used, but outside is necessarily tethered to the discussions of multiple file systems, and that's what you see here on Appendix page 84 talking about going outside of the entire file system D to other file systems for the Vossen alone mapping.

[00:25:20] Speaker 00:
Then when you get to the top of page 85, you see that we're talking about accessing free space portions of the file system singular.

[00:25:29] Speaker 00:
That is the boss and woman combination staying inside of file system B. When you look at the reply, this provides perhaps some more clarity on appendix page 873, where again you see that multiple file systems versus single file system distinction.

[00:25:50] Speaker 00:
Specifically, right at the above subsection C, we say Vossen and Vossen in combination with Williams allow access to free space portions of a single file system.

[00:26:02] Speaker 00:
So this is the Vossen-Wilman combination.

[00:26:05] Speaker 00:
Or in the case where the logical storage medium is made up of multiple file systems, plural, this is the going outside, the Vossen-only proposed mapping.

[00:26:17] Speaker 00:
And those two concepts, the multiplicity of file systems and the outsideness, are reiterated again throughout the oral hearing when counsel responded to questions from the board.

[00:26:28] Speaker 00:
So for example, if we look at appendix page 1089 at the oral hearing, starting at around line 13,

[00:26:41] Speaker 00:
We say, so in our example in D, that's all happening within that restrictive storage medium with the entire file system here.

[00:26:50] Speaker 00:
There is that within language, we are saying inside file system D singular.

[00:26:56] Speaker 00:
Then when talking about the Boston Alone mapping, we talk about accessing free space in other parts of that file system.

[00:27:04] Speaker 00:
At line 23, this is reiterated again at appendix page 1145.

[00:27:10] Speaker 00:
where we say, starting at line 10, the Vossen-only ground is also there in the petition.

[00:27:16] Speaker 00:
And that's what we're talking about when there could be, quote, multiple file systems making up a file system.

[00:27:23] Speaker 00:
But starting at the next line here, line 14, the combination of Vossen and Willman is described.

[00:27:29] Speaker 00:
And I think the clearest place for the colloquy of that restriction happening at the process restriction filter driver onto the file system singular by changing the path name, and that any free space is found in that restricted hierarchy.

[00:27:43] Speaker 00:
So again, staying inside a file system D. I see that I've gone well over my time.

[00:27:48] Speaker 03:
Can I ask you just one follow-up question?

[00:27:49] Speaker 03:
The pages you were showing us, A4, A5, that had to do with claim five.

[00:27:58] Speaker 03:
not necessarily claims six and nine.

[00:28:02] Speaker 03:
You're saying that the argument you're making is for three claims, not just claim five.

[00:28:08] Speaker 03:
So where is the argument with respect to six and nine?

[00:28:11] Speaker 03:
Because that was given a kind of short shrift in the petition.

[00:28:16] Speaker 03:
I'm looking at pages 97, 98, or whatever.

[00:28:22] Speaker 03:
And I'm not, what would you point to with respect to claims six and nine?

[00:28:26] Speaker 03:
Would you preserve it in the petition?

[00:28:28] Speaker 00:
Yes, your honor.

[00:28:29] Speaker 00:
So appendix 84 in 85, respectfully, is element 1c.

[00:28:34] Speaker 00:
And that is the same element that is in the other independent claims as well, claims 5 and 9 that you were mentioning.

[00:28:42] Speaker 00:
And we refer back to, for example, at appendix page 88, we repeat the arguments citing back to element 1c.

[00:28:52] Speaker 00:
And then for

[00:28:54] Speaker 00:
Excuse me.

[00:28:55] Speaker 03:
You've got to slow down a little.

[00:28:57] Speaker 00:
Sorry.

[00:28:57] Speaker 00:
I apologize.

[00:28:58] Speaker 03:
So 84, the heading for that is 1, 2, and 5, right?

[00:29:04] Speaker 03:
What appears in 84 and 85?

[00:29:06] Speaker 03:
No?

[00:29:06] Speaker 03:
I apologize.

[00:29:08] Speaker 00:
I'm not understanding.

[00:29:10] Speaker 00:
1, 2, and 5?

[00:29:12] Speaker 03:
Yes.

[00:29:13] Speaker 03:
I'm looking at for ground.

[00:29:15] Speaker 03:
Doesn't that section begin at page 78, appendix 78?

[00:29:18] Speaker 03:
Yes.

[00:29:20] Speaker 03:
And that deals with claims

[00:29:23] Speaker 03:
One, two, and five.

[00:29:25] Speaker 03:
Yes, Your Honor.

[00:29:26] Speaker 03:
So that's where we get 84 and 85 in the narrative there.

[00:29:32] Speaker 03:
So that's one, two, and five.

[00:29:33] Speaker 03:
Where do we get to the argument that you're saying you are making with respect to six and nine?

[00:29:42] Speaker 00:
So Your Honor, the other independent claims are claims five and claim nine.

[00:29:47] Speaker 00:
Claim five, as you mentioned, is caught up in that same ground.

[00:29:50] Speaker 00:
And it is discussed at appendix page 88 by referring back to element 1C.

[00:29:58] Speaker 00:
And then element 9C is discussed in the following ground, which brings an additional reference that's not an issue on appeal here.

[00:30:05] Speaker 04:
I'm sorry.

[00:30:05] Speaker 04:
And you're skipping over 6 because 6 depends on 5.

[00:30:09] Speaker 04:
Is that what I understand you to be saying?

[00:30:11] Speaker 04:
Six is dependent on five, is that right?

[00:30:13] Speaker 00:
Yes, that's correct, Your Honor.

[00:30:14] Speaker 04:
OK, so having done it for five, you're doing it for six.

[00:30:17] Speaker 04:
That's correct, yes.

[00:30:18] Speaker 04:
So what remains is nine, which is an independent claim.

[00:30:21] Speaker 00:
That's correct.

[00:30:23] Speaker 00:
And Your Honor, that's in the next ground starting on Appendix Page 89.

[00:30:27] Speaker 00:
And that mapping, again, refers back to element 5C, which refers to element 1C.

[00:30:34] Speaker 00:
And that mapping starts on Appendix Page 97.

[00:30:45] Speaker 04:
This is where you're saying element 9C repeats many parts of element 5C, and you earlier said 5C repeats 1C.

[00:30:53] Speaker 00:
That's correct, Your Honor.

[00:30:54] Speaker 00:
And 1C is, respectfully, where the argument is presented for these Austin women combination, for these staying inside the file system.

[00:31:03] Speaker 03:
It's quite a hunt for the board to go through in these petitions.

[00:31:15] Speaker 00:
It is common practice, Your Honor, to refer back to other claim elements to the extent that they're similar and have been discussed in prior mappings.

[00:31:24] Speaker 00:
And that was similarly done here.

[00:31:27] Speaker 03:
Anything further?

[00:31:29] Speaker 03:
OK, thank you.

[00:31:29] Speaker 03:
Thank you, Your Honor.

[00:31:31] Speaker 03:
If the other side reaches the cross appeal, we'll retain it.

[00:31:35] Speaker 03:
OK, we're good to go.

[00:31:38] Speaker 03:
Can you hear us?

[00:31:40] Speaker 02:
Thank you, Your Honor.

[00:31:43] Speaker 02:
I'd actually like to start with the cross appeal.

[00:31:45] Speaker 02:
When they're in this case, the claims are actually divided here in terms of two arguments.

[00:31:51] Speaker 02:
So some of these claims were allowed.

[00:31:53] Speaker 02:
So I think that's important to start there.

[00:31:57] Speaker 02:
This, as was noted, this is an abuse of discretion issue.

[00:32:00] Speaker 02:
On the record in this case, I don't think there's any way to find that there's abuse of discretion by the board.

[00:32:07] Speaker 02:
The board specifically looked at the vacation that was said there.

[00:32:12] Speaker 02:
And where there are arguments that are referenced

[00:32:14] Speaker 02:
The board actually raised this issue and said, I don't understand.

[00:32:19] Speaker 02:
There was on three different occasions they said, explain to us where this argument is.

[00:32:23] Speaker 02:
Here's a petition.

[00:32:24] Speaker 02:
Here's a language.

[00:32:25] Speaker 02:
How do you get to this point?

[00:32:29] Speaker 02:
After doing all that, the board then goes, relies simply on the petition and renders its decision.

[00:32:34] Speaker 02:
I think it's clear on the record that the board had obviously decided that that was a late raise and forfeited argument.

[00:32:41] Speaker 02:
We managed the board to basically ask them

[00:32:45] Speaker 02:
put out an order saying, yeah, that's what we found.

[00:32:47] Speaker 02:
I think it's wired.

[00:32:49] Speaker 02:
And the record in this case provides more than enough evidence and more than an indication that the board was aware of what was being said and just didn't buy it.

[00:33:01] Speaker 02:
It ended up reading it.

[00:33:03] Speaker 02:
There's nothing here.

[00:33:03] Speaker 02:
This amount of these cases where a party comes in, just points to something in their petition, puts it directly and says, look, here's what we said, XYZ.

[00:33:14] Speaker 02:
XYZ appears nowhere else here in this record.

[00:33:18] Speaker 02:
This is something that XYZ wasn't set to begin with, and board raised it with their own argument and tried to give it a chance to explain.

[00:33:26] Speaker 02:
They didn't convince the board and oriented termination to simply stick with what they clearly said at their petition.

[00:33:32] Speaker 02:
And so there's simply just no use of discretion here and no reason to overturn the board's determination.

[00:33:43] Speaker ?:
All right.

[00:33:44] Speaker 02:
And I'd like to have general questions for me on that point.

[00:33:59] Speaker 02:
Go ahead.

[00:33:59] Speaker 02:
Go ahead.

[00:34:00] Speaker 02:
Nothing.

[00:34:02] Speaker 02:
So I'd like to just quickly turn back to OFAC just to reiterate a couple of points here.

[00:34:07] Speaker 02:
OFAC is the worm application.

[00:34:10] Speaker 02:
It does one of two things.

[00:34:12] Speaker 02:
It either locks down

[00:34:13] Speaker 02:
individual tracks or lock down individual tracks relating to files.

[00:34:18] Speaker 02:
There's no concept or way of locking down anything that would be considered a portion of the file.

[00:34:23] Speaker 02:
It doesn't operate like that.

[00:34:26] Speaker 02:
And essentially the way it's trying to do is take a regular hard drive and turn it into a right much beat, many time drive.

[00:34:34] Speaker 02:
That was the point of this application.

[00:34:37] Speaker 02:
The things that are being claimed are the idea of a portion of the file.

[00:34:40] Speaker 02:
It's not even promoted concept within OPEC.

[00:34:43] Speaker 02:
If it doesn't actually suppose anything, anyone reading it would say, well, this provides a portion of a file.

[00:34:54] Speaker 02:
And just the last point, the board itself recognized that tracks are not files.

[00:35:01] Speaker 02:
Now the track doesn't immediately lock down file.

[00:35:03] Speaker 02:
You can't hear your argument.

[00:35:04] Speaker 02:
It says, well, this file isn't part of this track or that track.

[00:35:09] Speaker 02:
Those things don't work in effect.

[00:35:10] Speaker 02:
It had a simple thing.

[00:35:12] Speaker 02:
created basically a warning drive, a warning disk, out of an existing hard drive.

[00:35:20] Speaker 02:
But it did that by making everything readable.

[00:35:22] Speaker 03:
Thank you.

[00:35:24] Speaker 03:
Thank you.

[00:35:26] Speaker 03:
Now, the other side did address your cross appeal.

[00:35:29] Speaker 03:
I'll give you a minute if you think it's necessary for you to have anything you need to respond to.

[00:35:34] Speaker 01:
I would just like to say one quick comment.

[00:35:39] Speaker 03:
OK.

[00:35:39] Speaker 03:
I think you have to go to the podium.

[00:35:45] Speaker 03:
It's the nature of the piece.

[00:35:49] Speaker 03:
OK.

[00:35:53] Speaker 00:
Very quickly, timeliness is something that's relegated to board discretion.

[00:36:00] Speaker 00:
The board made no findings about that here, and we respectfully request that the court remand for the board to do so in the first instance.

[00:36:09] Speaker 00:
As this court commented in Ariosa, factual discretionary determinations

[00:36:13] Speaker 00:
are for the agency to make in the first instance.

[00:36:16] Speaker 00:
Thank you.

[00:36:16] Speaker 03:
Thank you.

[00:36:18] Speaker 03:
We thank both sides.

[00:36:19] Speaker 03:
And the third case is submitted.