[00:00:00] Speaker 04:
The final case this morning is 21-1181, COM Software versus NetApp.

[00:00:07] Speaker 04:
Mr. Farnham, please proceed when you're ready.

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

[00:00:14] Speaker ?:
For this case, I would like to start with the television.

[00:00:18] Speaker ?:
I would like to start with why Nicaragua is not a cogent access village with a portion of the storage medium.

[00:00:26] Speaker ?:
VAR proposed an annual about how to use filter drivers.

[00:00:31] Speaker 00:
Keyon does not claim that it emitted a filter driver when it existed.

[00:00:36] Speaker 00:
It's recognized by the fire art.

[00:00:39] Speaker 00:
Keyon doesn't talk so much about specific uses of the art, just teaches how to apply driver knowledge in individual use cases.

[00:00:52] Speaker 00:
The claims here require that the actual religion is associated with the storage medium, meaning the actual underlying storage

[00:01:03] Speaker 00:
NAGAR does not mention or teach anything about underlying storage.

[00:01:08] Speaker 00:
What NAGAR says is, and what it relied on, was that the filter driver would teach with attached to a device object, and the artist teaches.

[00:01:17] Speaker 00:
That's just a function of filter drivers.

[00:01:19] Speaker 00:
That is simply a description of what the filter driver would do.

[00:01:23] Speaker 00:
That doesn't say anything about the underlying storage, and it doesn't associate any kind of access privilege with that storage.

[00:01:30] Speaker 00:
The idea here is that if you have a hard drive or a tape drive, those drives, themselves, individually, have their own types of privileges associated with them.

[00:01:45] Speaker 00:
A keeping of the device object, which would then be cloud systems, who does not keep that, does buy it.

[00:01:53] Speaker 00:
A car would operate the same way, regardless of what storage is attached to it or underneath it.

[00:02:00] Speaker 00:
It doesn't matter if there's no actual privilege associated with that underlying storage pump by the power.

[00:02:13] Speaker 00:
There's a question up next.

[00:02:15] Speaker 00:
VOSN is newer.

[00:02:17] Speaker 00:
VOSN also is supposed to have a process restriction filter.

[00:02:21] Speaker 00:
All VOSN is doing is changing the path name for certain files.

[00:02:27] Speaker 00:
Again, this is simply done

[00:02:30] Speaker 00:
based on that it's related to the file.

[00:02:32] Speaker 00:
And it doesn't do anything, again, as to the actual underlying storage media.

[00:02:36] Speaker 00:
So these are coming out of the perspective of maybe storage of a file to be enterprise storage.

[00:02:44] Speaker 00:
And what actually is important here is those underlying storages have their own privileges, have their own policies, things of that nature.

[00:02:54] Speaker 00:
Neither of them are robust in anything like that.

[00:02:59] Speaker 00:
The area, I think, of what we're committed was finding that things that are completely contained within the file system, the process restriction filter, or this idea of anti-virus software, all it discloses is a connection to the lower level device object from the filter.

[00:03:15] Speaker 00:
It doesn't address or touch upon something that's actually associated with counter-line storage media, underline storage device.

[00:03:25] Speaker 00:
There are a couple of claims I'd also like to touch on.

[00:03:30] Speaker 00:
The first one is going to be claimed for 477 patent involving Denny.

[00:03:38] Speaker 00:
This one actually did get a split decision underneath from the board.

[00:03:44] Speaker 00:
Denny was something we claimed self-required that there was an evaluation of file content and just decision to allow it to be a file-based net evaluation.

[00:03:55] Speaker 00:
Then it simply teaches that you can get access to certain people.

[00:04:01] Speaker 00:
There is not, contrary to what the board decided, any decision made about whether to allow the file or delete the file or anything else.

[00:04:08] Speaker 00:
It just gives you a decision of which person has access.

[00:04:12] Speaker 00:
How you can tell this is what would you do in a certain circumstance.

[00:04:17] Speaker 00:
So somebody comes in, they can get access to a file, say, whether it's Department of Field of Physics, and then we allow them

[00:04:24] Speaker 03:
Mr. Farnham Mr. Farnham for claim for can you talk a little bit about the full limitation which talks about at least one of at least one of allowing or deleting the file and What does that phrase at least one of?

[00:04:44] Speaker 03:
mean for this claim limitation

[00:04:48] Speaker 03:
So as long as you allow a file, maybe that's good enough.

[00:04:52] Speaker 03:
Or if you just simply delete a file, that's good enough.

[00:04:58] Speaker 00:
So even under that New Year honor, denning doesn't apply because it doesn't do either.

[00:05:04] Speaker 00:
If access is granted under denning, nothing after the file sits on the drive.

[00:05:11] Speaker 00:
If access is denied, file sits there.

[00:05:14] Speaker 00:
Nothing is done based on the evaluator.

[00:05:17] Speaker 00:
The claim requires at least one of the allowances to be made in terms of the evaluator.

[00:05:22] Speaker 00:
The evaluation then is, for example, wait, this is the department of legal physics.

[00:05:27] Speaker 00:
If it is, this user can now go in onto the file.

[00:05:31] Speaker 00:
File is a file.

[00:05:32] Speaker 00:
There's no allowances.

[00:05:34] Speaker 00:
There's not a decision of like, let's not delete that file, let's keep that file.

[00:05:39] Speaker 00:
All that does is exist even as an act.

[00:05:41] Speaker 03:
What does allowing mean to you?

[00:05:47] Speaker 03:
I mean, maybe allowing, there's just not much work to do for that kind of limitation.

[00:05:57] Speaker 03:
Allowing could mean really little more than permitting something to exist and not deleting it.

[00:06:07] Speaker 00:
Your Honor.

[00:06:09] Speaker 00:
And even earlier that view, it has to be based on the evaluation.

[00:06:15] Speaker 00:
What the law does not mean is granting permission to access the file, okay?

[00:06:22] Speaker 00:
It wasn't argued that way, it was interpreted that way.

[00:06:25] Speaker 00:
You know, the way the board said, well, it didn't get to leave it.

[00:06:28] Speaker 00:
Well, on the meeting, there was a decision, that's what the court made, but they said there was no decision to leave the file there or delete the file.

[00:06:37] Speaker 00:
Now, depending on the valuation,

[00:06:39] Speaker 00:
nothing to do with anything about whether a child is allowed or not.

[00:06:48] Speaker 02:
Do I remember right, and just correct me if my memory is off, the board said since there's a step after looking at the content,

[00:07:00] Speaker 02:
Namely, this is Professor So-and-so's student or something.

[00:07:08] Speaker 02:
The next step is to take action to alter the file, which necessarily incorporates an allowing of the file.

[00:07:21] Speaker 02:
Because otherwise, there'd be nothing to take action on.

[00:07:25] Speaker 02:
Is that what the board said?

[00:07:29] Speaker 02:
It presupposes.

[00:07:31] Speaker 02:
The action that this is Denning, that Denning teaches, logically presupposes allowing it.

[00:07:45] Speaker 00:
So it needs to allow the file.

[00:07:49] Speaker 00:
And I don't think allowing, as I said, granting it permission to give access to files is not allowing the file.

[00:07:55] Speaker 00:
And I think the way that this actually got started, they actually called it allowing it not deleting.

[00:07:59] Speaker 00:
So it looks different than just nothing.

[00:08:02] Speaker 00:
I think the board, you know, in how this got discussed, they kind of redefined it as not deleting the file.

[00:08:07] Speaker 00:
Although there's more decision about deleting or not deleting.

[00:08:10] Speaker 00:
And that's how the board actually looked at it a lot.

[00:08:17] Speaker 00:
So if there are no further questions on that, I want to also quickly address the enforcement of a secure ratio for fleet operation.

[00:08:29] Speaker 00:
Two quick points on punting.

[00:08:31] Speaker 00:
Punting does not force anything.

[00:08:34] Speaker 00:
In pun, all that happens is you put it into the operation, you then send a proper window saying, you want to, you know, securely delete the file.

[00:08:43] Speaker 00:
That's not forcing.

[00:08:44] Speaker 00:
Forcing has meaning here.

[00:08:45] Speaker 00:
It doesn't just say, you know, in the plain language, it doesn't just say, ask the person if they want to delete or not.

[00:08:51] Speaker 00:
The reading of that, you can see in the specification where it talks about types of aims and supplies too.

[00:08:57] Speaker 00:
So, for example, it mentions DOD regulations that may require that you actually have to do a secure erasure of a file in a certain file.

[00:09:05] Speaker 00:
This means that you can do that, but I want to make sure that every user in your enterprise understands which files keeps track of those files.

[00:09:13] Speaker 00:
That won't be automated and all that gets forced is simply a kind of deletion.

[00:09:17] Speaker 04:
But I guess I'm not sure I understand this, but the claim doesn't require who or what causes the forcing, does it, of the secure erasure?

[00:09:27] Speaker 04:
And it's a method claim that just requires forcing for a delete operation.

[00:09:33] Speaker 04:
Why isn't the board right that's sufficient?

[00:09:38] Speaker 00:
Because forcing means it definitely happens.

[00:09:43] Speaker 00:
It is forcing secure for delete.

[00:09:46] Speaker 00:
Tom does not provide an example where it's forced.

[00:09:48] Speaker 00:
And as it happens, Tom asks the user what he wants to do.

[00:09:53] Speaker 00:
That's not forcing the operation.

[00:09:55] Speaker 00:
That means, go back to the example, that means that you can then sit there and have files that should have been securely deleted from some other regulation, and it doesn't happen because your user doesn't want to make that decision.

[00:10:12] Speaker 00:
And Tom also, we think, does not

[00:10:16] Speaker 00:
actually pieces of your erasure here, as is met.

[00:10:19] Speaker 00:
So your erasure is to have the localizer of the file.

[00:10:22] Speaker 00:
Some pieces of encryption, and the file contents are still there.

[00:10:28] Speaker 00:
And that's kind of how I'm going to say it is kind of an alternative to secure erasure.

[00:10:32] Speaker 00:
But secure erasure means that you can replace all of that with zeros.

[00:10:36] Speaker 00:
If you go in and you get rid of all that data so it's not sitting there, it can't be found, it can't be accessed later.

[00:10:42] Speaker 00:
If there are no further questions, then I'd like to reserve the rest of my time.

[00:10:45] Speaker 04:
Thank you.

[00:10:47] Speaker 04:
Mr. Goldberg, we're ready whenever you are.

[00:10:51] Speaker 01:
May it please the court?

[00:10:52] Speaker 01:
I'd like to start with our cross appeal for claims 434, 69, and 103 of the 243 patent.

[00:11:00] Speaker 01:
The board only found these claims patentable because it agreed with Tom that the steps of the claims required a specific order.

[00:11:07] Speaker 01:
The board was wrong on this claim construction issue.

[00:11:10] Speaker 01:
As we told the board and according to interactive gift,

[00:11:13] Speaker 01:
Unless the steps of a method actually recite an order, the steps are not ordinarily construed to require one.

[00:11:21] Speaker 01:
The claims do not recite an order here.

[00:11:24] Speaker 01:
Yet the board held the claim for, for example, because- Well, I guess I'm a little clear on your cross appeal.

[00:11:28] Speaker 04:
The plain claim language, doesn't that require that a file is created first, and only then can the content of the file be evaluated?

[00:11:38] Speaker 04:
I don't understand how any content of the file can be evaluated if the file hasn't been created first.

[00:11:44] Speaker 04:
So that's why I think the step seems sequential.

[00:11:48] Speaker 01:
Well, the reason, Your Honor, that we know that the steps do not need to be sequential is the specification of the patent.

[00:11:55] Speaker 01:
This is the 243 patent actually specifies ways that the content of the file can be evaluated first.

[00:12:06] Speaker 01:
For example, at appendix

[00:12:08] Speaker 01:
1230 to 1231.

[00:12:13] Speaker 01:
We can see in column 18, starting at line 61, according to an exemplary embodiment.

[00:12:22] Speaker 01:
You've got to give me a second.

[00:12:23] Speaker 04:
I'm sorry.

[00:12:23] Speaker 04:
Yes.

[00:12:24] Speaker 04:
1230, column 18, you said?

[00:12:27] Speaker 01:
Yeah, at the bottom.

[00:12:28] Speaker 01:
Yeah.

[00:12:29] Speaker 01:
Line 61.

[00:12:33] Speaker 01:
I'm in there.

[00:12:34] Speaker 01:
Go ahead.

[00:12:34] Speaker 01:
According to an exemplary embodiment, the trap player may determine

[00:12:38] Speaker 01:
if a file is harmful based on the content of a file.

[00:12:42] Speaker 01:
In an exemplary embodiment, the trapeller may determine if the file is a computer virus, malware, adware, spyware, computer worm, et cetera.

[00:12:51] Speaker 01:
According to an exemplary embodiment, content group may comprise types of harmful or malicious files.

[00:12:58] Speaker 01:
In an exemplary embodiment, and this is the key part, the trapeller may prevent harmful files from being created.

[00:13:06] Speaker 01:
looking at the content of the file, as we saw at the bottom of column 18.

[00:13:10] Speaker 01:
And then, this is before the files even created, because in column 19, we see that the trap layer actually prevents those files from being created in the first place.

[00:13:21] Speaker 02:
What is the line number of column 19 where it says prevent creation?

[00:13:27] Speaker 02:
1.

[00:13:29] Speaker 01:
So actually, starting on the very first line of column 19, third word,

[00:13:34] Speaker 01:
The trap layer may prevent harmful files from being created.

[00:13:37] Speaker 01:
So it's doing the analysis before the file is even created.

[00:13:43] Speaker 01:
Otherwise, it wouldn't be able to prevent it from being created.

[00:13:46] Speaker 01:
So we have in the specification explanation that it can go in a different order.

[00:13:52] Speaker 01:
The plain language of the claims does not specify any particular order.

[00:13:58] Speaker 01:
And which claim are we looking at for this discussion?

[00:14:03] Speaker 01:
Claim 4 is a good claim to look at.

[00:14:06] Speaker 02:
Claim 4 of the 243?

[00:14:08] Speaker 01:
Yeah, this is at Appendix 1237.

[00:14:09] Speaker 01:
OK.

[00:14:12] Speaker 01:
And the cue steps.

[00:14:18] Speaker 02:
So on the assumption, this column 1819 paragraph talks about an activity consisting of somehow identifying a file not yet created as bad and then not creating it.

[00:14:34] Speaker 02:
How would that map on to claim four?

[00:14:44] Speaker 01:
So in claim four,

[00:14:48] Speaker 01:
It specifies that the allowing or the denying by the at least one computer processor, the attempted operation comprises.

[00:14:57] Speaker 01:
So looking at mapping this to the column 18, column 19, first we're going to evaluate

[00:15:05] Speaker 01:
Whether we're going to evaluate the content of the file.

[00:15:08] Speaker 01:
We're going to look and we're going to see if it has a virus or malware or something like that.

[00:15:13] Speaker 01:
And then I'm sorry.

[00:15:15] Speaker 02:
And if that comes first, what is the antecedent basis for the word the in front of file?

[00:15:22] Speaker 01:
Well, the antecedent basis would remain the same.

[00:15:24] Speaker 01:
It's in the create a file step.

[00:15:28] Speaker 01:
But antecedent basis alone is not sufficient to require a specific order.

[00:15:34] Speaker 01:
We know that, for example, from the interactive gift case.

[00:15:37] Speaker 02:
Where the claim put it put aside the antecedent basis, so so we're now reorder it.

[00:15:43] Speaker 02:
We're going to evaluate a Content of the file without knowing what the file is yet put it.

[00:15:50] Speaker 01:
Let's assume that that's not a problem then what happens so Assuming that the contents not a problem.

[00:15:57] Speaker 01:
It's not a virus or something like that at that point It would be allowed so at the end of the claim at least one of allowing the attempted operation of

[00:16:07] Speaker 01:
And the attempted operation, going back up, is creating.

[00:16:11] Speaker 01:
So we go back up, and we allow the create file operation to create a file.

[00:16:17] Speaker 04:
So we are doing.

[00:16:18] Speaker 04:
I'm not following.

[00:16:19] Speaker 04:
I mean, I'm looking at the language, and it says the trap layer may prevent harmful files from being created.

[00:16:26] Speaker 04:
OK.

[00:16:27] Speaker 04:
But then it goes on to say that it may allow a harmful file to be created to evaluate the content of the file, and then delete the file if the file is determined to be harmful.

[00:16:37] Speaker 04:
which seems to map onto the claim language.

[00:16:39] Speaker 04:
So you're taking that one sentence and say that that one sentence necessarily is what defines or redefines what these steps are in claim four?

[00:16:49] Speaker 01:
I wouldn't say that it's defining or redefining.

[00:16:55] Speaker 01:
I would say that it is one of the embodiments that claim four can cover.

[00:17:00] Speaker 01:
the language that Your Honor just read would be another embodiment that that claim language would be able to cover.

[00:17:06] Speaker 02:
And the reason why it is able to... Indeed, it would be the one for which claim four seems perfectly written in that sequence.

[00:17:17] Speaker 01:
Well, Your Honor, I think, again, the claim would be able to cover

[00:17:21] Speaker 01:
both of those embodiments because the claim language itself does not require that specific order.

[00:17:26] Speaker 01:
And the specification does have this other embodiment where it goes out of order.

[00:17:31] Speaker 01:
And I'll note that the claim.

[00:17:35] Speaker 04:
So we are in that read of that one sentence.

[00:17:38] Speaker 04:
All it says is the trap layer may prevent harmful fear files from being created.

[00:17:43] Speaker 04:
So how does that math on to the claim for language?

[00:17:47] Speaker 04:
which this talks about prevents them from being created.

[00:17:51] Speaker 01:
Well, what the language in claim 19 is showing is that you are able to evaluate before you have created the file.

[00:18:01] Speaker 01:
Because in column 19, you're able to have completed that evaluation and then prevent the file from being created.

[00:18:09] Speaker 03:
So claim four has three steps.

[00:18:14] Speaker 03:
in allowing the creation of a file, the evaluating content of the file, and then at least one of allowing an attempted operation or deleting the file based on the evaluating.

[00:18:28] Speaker 03:
Are you attempting to describe what's explained in column 18 to column 19 as tracking first you do step two, then you do step three, then you do step one?

[00:18:43] Speaker 03:
Exactly, Your Honor.

[00:18:45] Speaker 03:
So what would, in your understanding, be allowing the attempted operation?

[00:18:56] Speaker 01:
Allowing the attempted operation would be allowing the create file operation.

[00:19:04] Speaker 03:
But doesn't that collapse step three into step one, or step one into step three?

[00:19:09] Speaker 03:
Doesn't step three need to be something

[00:19:13] Speaker 03:
a separate action from the action described in step one?

[00:19:18] Speaker 01:
Your Honor, I don't think that it does, because if you look at the preamble of the claim, the attempted operation is actually all of those steps.

[00:19:33] Speaker 02:
This is, I guess, just returning to what I think is closely related to the point that Judge Prost made.

[00:19:42] Speaker 02:
The carryover sentence from 18 to 19 is all about deleting, not about allowing.

[00:19:48] Speaker 02:
So in that situation, you would have evaluating something, deleting it, and then nothing could conceivably be left.

[00:19:57] Speaker 02:
of the first allowing limitation, it could possibly ever be performed in that process.

[00:20:05] Speaker 02:
So it's a little bit odd to read from that.

[00:20:09] Speaker 02:
Trap layer may prevent harmful files from being created.

[00:20:12] Speaker 02:
That would give no function at all to element number one, reordered, in your view, to be last.

[00:20:29] Speaker 01:
Well, Your Honor, if we were in the deleting context, then... That's what your key sentence from the spec is in the deleting context.

[00:20:43] Speaker 01:
No, Your Honor, the deleting context is actually the sentence after the one that I was referring to.

[00:20:49] Speaker 01:
So I've been referring to the sentence that bridges columns 18 and 19 that talks about preventing harmful files from being created.

[00:20:59] Speaker 04:
Yeah.

[00:20:59] Speaker 04:
So that's a circumstance where they're never created.

[00:21:02] Speaker 04:
I don't understand why one would construe the specification as necessarily saying that maps on to claim four.

[00:21:11] Speaker 04:
And then so you're saying the evaluating step goes first.

[00:21:19] Speaker 04:
and you evaluate it under your view, and you prevent the file from being created after the evaluation.

[00:21:25] Speaker 04:
So where do you get to creating file operation?

[00:21:29] Speaker 02:
Preventing the creation is neither of the two options in the listed thing.

[00:21:35] Speaker 02:
Yes.

[00:21:36] Speaker 02:
Yes, Judge.

[00:21:37] Speaker 02:
The only element that is met by that sentence is number two, neither one nor three.

[00:21:44] Speaker 01:
Yeah, and my reliance on that sentence is not to say that that sentence is the claim.

[00:21:50] Speaker 01:
It's just to point out that it is possible to evaluate content of files before the files have been created.

[00:21:58] Speaker 01:
That's the only thing that I'm relying on that sentence for.

[00:22:01] Speaker 03:
But if you evaluate the file, and then you don't like the file, and so per step three, you delete the file based on said evaluation,

[00:22:10] Speaker 03:
then there's no opportunity to do step one, allowing the creation of the file.

[00:22:19] Speaker 01:
Right?

[00:22:20] Speaker 01:
I believe that's correct, Your Honor.

[00:22:22] Speaker 01:
But as I think you were recognizing earlier with respect to one of the other claims, the way that the end of this claim is written, the at least one of allowing or deleting, we never have to get to that deleting option.

[00:22:36] Speaker 01:
There's no requirement that we do that.

[00:22:40] Speaker 01:
This claim can cover situations where deleting never happens.

[00:22:44] Speaker 04:
We spent a lot of time on your cross appeal, so why don't you go to the main appeal and maybe address what your friend said about denning and maybe also about cum if you have time.

[00:22:55] Speaker 01:
Yes.

[00:22:59] Speaker 01:
So first, with respect to

[00:23:01] Speaker 01:
Denning, there has been some question about what does allowing mean?

[00:23:09] Speaker 01:
And my colleague on the other side was talking about how the board took certain positions on what it means.

[00:23:17] Speaker 01:
Well, the reason that the board took certain positions is because Com told the board what allowing means at the oral hearing.

[00:23:24] Speaker 01:
Com told the board that allowing a file means to not delete it after evaluating.

[00:23:31] Speaker 01:
That was their explanation to the board.

[00:23:35] Speaker 01:
And that is why, in the board's final written decision, as Judge Taranto was recognizing earlier, in Denning, you have the alteration that is happening.

[00:23:48] Speaker 01:
And necessarily, that means, if you're going to be altering it, the file that you must not have deleted it.

[00:23:56] Speaker 01:
So therefore, you have met the allowing limitation

[00:24:00] Speaker 01:
under Calm's own understanding of allowing that it told the board.

[00:24:07] Speaker 01:
And that's why the board made the findings that it made.

[00:24:10] Speaker 02:
Maybe the fact that the other side said that to the board, the KOM said that to the board, is enough by itself.

[00:24:21] Speaker 02:
But if one swapped in the phrase not deleting for allowing, are we looking at claim four?

[00:24:28] Speaker 02:
Is that, again, what we're doing?

[00:24:30] Speaker 02:
Claim four.

[00:24:32] Speaker 02:
Which claim are we aware of?

[00:24:34] Speaker 01:
This is claim four in the 477.

[00:24:35] Speaker 02:
Then the last step would be at least one of not deleting or deleting the file based on said evaluation where the not can be entirely passive.

[00:24:48] Speaker 02:
Does that leave any actual meaning to that phrase?

[00:24:53] Speaker 01:
Yes, I believe it does your honor because even if the not deleting is passive

[00:24:59] Speaker 01:
It is still a requirement in the sense that you could have situations where the claim wouldn't be met.

[00:25:07] Speaker 01:
For example, if there was a situation where the file was deleted, that would not be met by the claim.

[00:25:15] Speaker 01:
That would not... Sorry.

[00:25:17] Speaker 02:
That would... It seems to me not deleting and deleting pretty much cover the universe, don't they?

[00:25:22] Speaker 01:
Yes, they do.

[00:25:23] Speaker 02:
Yes, they cover the universe, Your Honor.

[00:25:26] Speaker 02:
But for that to have meaning, and maybe this is what KOM is, is one way of describing what KOM is getting at, is there actually has to be a decision focused on the choice, delete or not.

[00:25:40] Speaker 02:
But this presupposed continuation, which I think is what the board did in saying Denning, by saying going and alter it, must presuppose that it remains.

[00:25:53] Speaker 02:
What's missing there is any

[00:25:56] Speaker 02:
thinks that the computer is conscious, a conscious decision to do one or the other.

[00:26:03] Speaker 02:
And Denning doesn't refer to such a thing.

[00:26:07] Speaker 01:
Well, in the claim itself, there just is simply no requirement for a choice to be made like that.

[00:26:12] Speaker 01:
The claim simply requires, at the end, that you do at least one of allowing or deleting.

[00:26:18] Speaker 01:
There's no choice language there.

[00:26:21] Speaker 01:
They could have written the claim,

[00:26:23] Speaker 01:
to say that a choice needs to be made, but they didn't do that.

[00:26:26] Speaker 01:
It just says allowing or deleting.

[00:26:30] Speaker 01:
As we know, Kam said that allowing means not deleting.

[00:26:33] Speaker 02:
And in Denning, it is not an unnatural meaning of a phrase like that to refer to a choice based on, I think was a term used, on an input consisting of the question, do I delete or not?

[00:26:53] Speaker 01:
Well, in that sense, Your Honor, Denning does make that choice.

[00:26:57] Speaker 01:
Because Denning, once it looks at the content and it determines that it is of a particular nature, then it will allow alteration.

[00:27:07] Speaker 01:
And in order to allow alteration, it has to not delete.

[00:27:10] Speaker 01:
So there is a choice in that sense being made.

[00:27:13] Speaker 01:
And it is resulting in the not deleting, which Coms Attorneys has said.

[00:27:18] Speaker 03:
Based on the evaluation of the content of the file, though, I think that's part of the claim, right?

[00:27:23] Speaker 01:
Yes.

[00:27:24] Speaker 03:
The at least one of allowing the file or denying or deleting, it's based on the evaluation.

[00:27:33] Speaker 01:
Yes.

[00:27:33] Speaker 03:
So I guess the question is, what is it on the evaluation of, I don't know, that physics department field that Denning is saying, we're allowing this?

[00:27:47] Speaker 01:
Well, based on looking at the field, if it includes certain information, then

[00:27:52] Speaker 01:
the decision is made, yes, we are going to allow alteration.

[00:27:56] Speaker 01:
And if we are going to allow alteration, that necessarily means that we are not going to delete.

[00:28:01] Speaker 01:
If Denning was to come across a situation where alteration was not going to be allowed, then there very well may be deletion that happens.

[00:28:16] Speaker 01:
And I see I'm long past my time.

[00:28:22] Speaker 04:
OK, thank you.

[00:28:23] Speaker 04:
If necessary, we'll restore a minute or two.

[00:28:27] Speaker 04:
Thank you.

[00:28:29] Speaker 04:
OK, we're ready, sir.

[00:28:32] Speaker 00:
So let's start with Dennington, to be just about there, Your Honor.

[00:28:38] Speaker 00:
I think that there has to be something done on that valuation.

[00:28:43] Speaker 00:
And what that means in this context is,

[00:28:47] Speaker 00:
There has to be some kind of choice made on the evaluation that affects the status of that file, either not being allowed or being deleted.

[00:28:58] Speaker 00:
In denning, and it is one of the four, if access is granted, the file stays there.

[00:29:04] Speaker 00:
If getting into a batch evaluation next is not granted, the file stays there and comes with a signature and a code word we don't know, maybe it could be deleted.

[00:29:13] Speaker 00:
That's nowhere in denning.

[00:29:17] Speaker 00:
suggest that at all here.

[00:29:19] Speaker 00:
But I think that reckons that it does have to be based on the evaluation term.

[00:29:23] Speaker 00:
This point does not say, make an evaluation, and then just have some random phrase aphorics about allowing you to delete a file completely unrelated to the evaluation that was made.

[00:29:36] Speaker 00:
And I think this is essentially some point that was made by the descent below that was that choice that had been made and that was acquired based on the continent file.

[00:29:45] Speaker 00:
And for whatever reason, we think that that decision should be reversed.

[00:29:51] Speaker 00:
Turning to the false appeal, the point I'd like to point out is that there's a lot of discussion here of some of the language.

[00:30:02] Speaker 00:
The most important part of that language was at the very beginning of those paragraphs, where it said, in an exemplary environment.

[00:30:08] Speaker 00:
And a lot of it, you know, this is not what happened.

[00:30:10] Speaker 00:
It says, if I can tell you the language that you present in invention and define it reasonably,

[00:30:15] Speaker 00:
All the description there explains that it was talking about a separate embodiment.

[00:30:18] Speaker 00:
And a lot of the struggle here then, of course, to get that to fit to those claims, that's not the embodiment that's in those claims.

[00:30:26] Speaker 00:
That was just discussing one way of doing that, that isn't the claim that's why it didn't read on these claims.

[00:30:32] Speaker 00:
The claims themselves are not like interactive.

[00:30:37] Speaker 00:
Here, there is a definite order that's required because of the antecedent basis issues

[00:30:45] Speaker 00:
You know, in the structure that it gives in those claims, it requires that it be done in an order.

[00:30:50] Speaker 00:
So we don't think interactive gifts is out of the book here.

[00:30:55] Speaker 00:
It didn't raise this kind of mercy to address this issue.

[00:30:58] Speaker 00:
You know, they made some argument about some man issues in interactive gifts, but it wasn't actually an issue the court addressed.

[00:31:09] Speaker 00:
They decided in the case to kind of look at the claims and say,

[00:31:11] Speaker 00:
Oh, look, there's Annecy and Bates' issues over these claims that weren't a problem with the order.

[00:31:16] Speaker 00:
And all of them need to be raised in the court now.

[00:31:20] Speaker 00:
So for that reason, we think that an interactive gift does not apply in this case.

[00:31:30] Speaker 00:
Do you have any further questions on anything else to say?

[00:31:33] Speaker 04:
No.

[00:31:33] Speaker 04:
Thank you.

[00:31:34] Speaker 04:
Thank you very much.

[00:31:38] Speaker 04:
And thanks for your cooperation for all this back and forth.

[00:31:41] Speaker 04:
Thank you.

[00:31:46] Speaker 04:
OK.

[00:31:47] Speaker 04:
Mr. Goldberg, we'll give you one minute to respond exclusively to the cross-appeal.

[00:31:53] Speaker 01:
Just two quick points, Your Honors.

[00:31:56] Speaker 01:
One.

[00:31:57] Speaker 01:
issue, the ordering is definitely something that the board addressed.

[00:32:02] Speaker 01:
For example, at appendix 1180, it's something that we argued below.

[00:32:06] Speaker 01:
And in Com's blueberry, they even quoted a lot of argument below about this.

[00:32:12] Speaker 01:
So I don't think there's any issues here about being a new argument.

[00:32:16] Speaker 01:
And then as to interactive gift, I just want to note that in that case,

[00:32:23] Speaker 01:
The claim recited each information in a first step and then the information in a fourth step.

[00:32:29] Speaker 01:
That antecedent relationship there was not something that caused the court to say there's a specific order required.

[00:32:36] Speaker 01:
The court there found that the plain language of the claims did not require any specific order.

[00:32:41] Speaker 01:
And unless there's any questions, I'll stop there.

[00:32:45] Speaker 04:
Thank you.

[00:32:46] Speaker 04:
We thank both sides for cases submitted.

[00:32:48] Speaker 04:
That concludes our proceedings for this morning.