[00:00:00] Speaker 01:
All right, our next case for argument is 21-1744, Polycom versus direct packet research.

[00:00:08] Speaker 01:
Mr. Eaton, please proceed when you're ready.

[00:00:30] Speaker 03:
One again, Your Honors.

[00:00:31] Speaker 03:
I feel like I'm about to embark on the second of two back-to-back marathons.

[00:00:35] Speaker 03:
The second one may be tyrant.

[00:00:38] Speaker 03:
Your Honors, the board found all the claims of the 978 patent invalid as obvious, other than those that were disclaimed once they were faced with an allegation of obviousness.

[00:00:53] Speaker 03:
except two classes of claims, the alternate data claims and the network registration claims.

[00:01:02] Speaker 03:
I'm going to talk just for a minute about the claim invention in general and then explain why the board was wrong to uphold those particular aspects of the claim while rejecting the others.

[00:01:15] Speaker 03:
So the basic invention is the method of traversing a firewall by taking multi-port packets, converting them into single-port packets, routing them through a predetermined port, and then sort of demultiplexing them and putting them, or remultiplexing them, I guess, and putting them back into their multi-port form through the open port.

[00:01:32] Speaker 03:
All of the claims are variations on that theme.

[00:01:37] Speaker 03:
The basic invention is undisputedly obvious.

[00:01:39] Speaker 03:
The direct packet immediately complained it along with, disclaimed it along with half the other claims.

[00:01:45] Speaker 03:
over Katolica and Kirchhoff.

[00:01:49] Speaker 03:
Let's start with the network registration claims.

[00:01:53] Speaker 03:
There's no dispute that all the elements of the network registration claims are present in the prior art.

[00:01:58] Speaker 03:
The board found as much.

[00:01:59] Speaker 03:
It's not disputed here.

[00:02:01] Speaker 03:
The only basis for the board's determination that those claims are not obvious was its conclusion that Polycom failed to prove that a person of ordinary skill would have a motivation to combine

[00:02:14] Speaker 03:
those aspects of the art references.

[00:02:18] Speaker 03:
It said first that because the network registration function in Kirchhoff sits on an external manager that's outside the firewall, it wouldn't be useful in the Kritalika reference because there the communications are established using an adapter controller that's inside the firewall.

[00:02:35] Speaker 03:
And the court seemed to, excuse me, the board, seemed to discount the disclosure of network registration in Krotok for that reason.

[00:02:43] Speaker 03:
And it also relatedly said that Polycom failed to show that network registration would improve Krotok.

[00:02:52] Speaker 03:
To get to that conclusion, Your Honor, the board applied

[00:02:56] Speaker 03:
An analysis of the motivation to combine test that was unduly narrow by focusing on the location of Kirchhoff's network registration claims rather than the function It never really considered at least didn't consider sufficiently Whether a person of ordinary school skill in the art would add the functionality of network registration

[00:03:22] Speaker 03:
Rather than, we don't dispute that you wouldn't add an external manager to Krotolik.

[00:03:28] Speaker 03:
It wouldn't make sense.

[00:03:31] Speaker 03:
That was never the argument.

[00:03:31] Speaker 03:
The argument was always you would add network registration because it enables packet filtering, which will enable you to allow more traffic through the firewall in a secure way, which is the stated function of Krotolik.

[00:03:47] Speaker 03:
Specifically, it's intended to route communications through network firewalls with minimal security risk.

[00:03:54] Speaker 03:
That's what network registration does.

[00:03:58] Speaker 03:
Kritalika explains that the problem it's solving is that multimedia communications through firewalls are problematic for a variety of reasons, and the original method of dealing with that was to drop the firewall or reduce its effectiveness.

[00:04:14] Speaker 03:
And they're trying to solve that problem by directing the multimedia through a single port.

[00:04:20] Speaker 03:
So you don't have to lower the firewall.

[00:04:21] Speaker 03:
You just have to direct it all through a single port in the firewall.

[00:04:28] Speaker 03:
Network registration is a method of trusted communication, right?

[00:04:32] Speaker 03:
You've registered your endpoint with me.

[00:04:34] Speaker 03:
I know you're a trusted communicator.

[00:04:36] Speaker 03:
I will accept content from you.

[00:04:38] Speaker 03:
There is no reason why that wouldn't be a useful addition to Fatala.

[00:04:43] Speaker 03:
Remember, Kritalika is solving a particular part of the firewall problem.

[00:04:47] Speaker 03:
It says, I'm going to enable multimedia communication through this single port.

[00:04:51] Speaker 03:
It's a way to prevent data loss on the way to the firewall.

[00:04:54] Speaker 03:
But it's not a panacea for the security that Kritalika is trying to achieve, right?

[00:04:59] Speaker 03:
It screens certain kinds of content, but not others.

[00:05:03] Speaker 03:
There may be other security risks that packet filtering via network registration could mitigate.

[00:05:08] Speaker 03:
And the board did not seem to consider that possibility when it rejected this aspect of our argument below.

[00:05:18] Speaker 03:
It's essentially the same rationale that was used to add encryption to Kritalika,

[00:05:24] Speaker 03:
In a different aspect of the board's opinion and the board didn't seem to have a problem with it there But for some reason decided that essentially the same motivation which is improving security within the network behind the firewall that Made adding encryption obvious did not make adding network registration obvious and that was error What I thought that you said the board had a made a legal error in its

[00:05:50] Speaker 01:
utilization of the motivation combined.

[00:05:52] Speaker 01:
What was the legal error?

[00:05:53] Speaker 03:
The legal error, Your Honor, was focusing, instead of focusing on the function of network registration, which was in fact what we argued, basically saying, well, it's external to the firewall, which you wouldn't make, it wouldn't be compatible essentially with Krotolica because its structure is different.

[00:06:09] Speaker 03:
But that's not the appropriate consideration.

[00:06:11] Speaker 03:
The appropriate consideration is it doesn't matter whether you can physically

[00:06:14] Speaker 03:
combined for Tolaga and Kirchhoff, it matters whether or opposed they would think of this functionality as being appropriate for Tolaga.

[00:06:23] Speaker 03:
The board seems to have put undue weight on the location of the external manager in Kirchhoff, and I think that was legal error, Your Honor.

[00:06:34] Speaker 03:
The argument is also, we have an alternative argument that that conclusion is not supported by substantial evidence.

[00:06:40] Speaker 03:
I think you can go either way.

[00:06:41] Speaker 03:
I think the record is sufficient on both.

[00:06:44] Speaker 03:
Your Honour, on the alternate data claims, the Board said that Polycom failed to provide sufficient evidence that the combination of Potolich and Kirchhoff teaches the claim limitation and failed to explain how incompatible TCP and UDP protocols could communicate with each other in order to teach the alternate data in response to a recent request limitation.

[00:07:05] Speaker 01:
Paul, the Board started by finding that you waived this argument, didn't it?

[00:07:09] Speaker 03:
Well, they said it was a new argument.

[00:07:10] Speaker 03:
They didn't actually find that we waived it.

[00:07:12] Speaker 03:
The word waiver doesn't appear.

[00:07:15] Speaker 03:
Our opponents didn't argue waiver.

[00:07:18] Speaker 03:
They entertained the argument, and the opponents got a cert reply.

[00:07:21] Speaker 03:
So there's not really a good basis for finding a waiver in those circumstances, Your Honor, as we explained in our brief.

[00:07:31] Speaker 03:
The argument was fully considered.

[00:07:34] Speaker 03:
in ordinary circumstances, if there were no sir reply, then perhaps there's an argument.

[00:07:39] Speaker 03:
But they were able to address the argument, and the court was able to address the argument.

[00:07:43] Speaker 03:
So from a perspective.

[00:07:44] Speaker 01:
Patent owner argues that petitioner impermissibly presents a new argument in its reply, and we agree.

[00:07:51] Speaker 01:
Well.

[00:07:52] Speaker 01:
That feels right.

[00:07:53] Speaker 01:
They didn't use the word waiver.

[00:07:55] Speaker 01:
No, they didn't.

[00:07:55] Speaker 00:
Well, I think that matters.

[00:07:56] Speaker 01:
It feels like a synonym.

[00:07:58] Speaker 03:
They hit four for turf.

[00:08:01] Speaker 01:
OK, very good.

[00:08:02] Speaker 01:
Well done.

[00:08:02] Speaker 03:
Yeah, they wait for a forfeiture debate.

[00:08:04] Speaker 03:
No, Your Honor.

[00:08:05] Speaker 03:
Yes, it found that we impermissibly presented the argument, I agree.

[00:08:09] Speaker 03:
It didn't expressly find that we waived it, which would be a legal conclusion that it would have to reach in its discretion.

[00:08:14] Speaker 03:
And then it considered the argument, which it would not have been required to do if it had found that we waived it.

[00:08:19] Speaker 01:
Well, but after it says the patent owner argues, petitioner impermissibly presents a new argument in its reply, and we agree, it then says,

[00:08:29] Speaker 01:
even if we were to consider petitioners new argument that does seem that even if we were to consider seems to suggest that they're saying we hold we don't have to consider but even if we were to consider it they would still lose but that even if we were to consider language sort of reinforces to me their conclusion initially is that they are not going to decide

[00:08:53] Speaker 01:
the issue, and then they did what they do often with us, which by the way is very good, is give us an alternative analysis in the event that it has to be reached.

[00:09:04] Speaker 01:
So I guess I do read their opinion as concluding that they're not going to and don't have to address your argument because it was impermissibly raised for the first time in the reply.

[00:09:15] Speaker 01:
But then they go on and do it alternatively.

[00:09:17] Speaker 01:
But is that an unfair reading on my part?

[00:09:19] Speaker 03:
No, Your Honor, your point is well taken.

[00:09:20] Speaker 03:
You can read that language that way.

[00:09:22] Speaker 03:
The fact remains that they did consider the argument.

[00:09:25] Speaker 03:
The ordinary procedure before the board is if someone raises an argument impermissibly in reply is you move to strike the reply.

[00:09:31] Speaker 03:
That's normally how it's handled.

[00:09:32] Speaker 03:
They didn't do that.

[00:09:33] Speaker 03:
They actually didn't even say we impermissibly raised it.

[00:09:35] Speaker 03:
They just said it was new.

[00:09:37] Speaker 03:
The board kind of put that gloss on it.

[00:09:41] Speaker 03:
So, Your Honor, I think given that the argument was raised, they didn't say that we waived it.

[00:09:46] Speaker 03:
The board didn't expressly find that we waived it, although I understand that you could read the language that way.

[00:09:52] Speaker 03:
The board addressed it.

[00:09:53] Speaker 03:
The other side had an opportunity to address it in full.

[00:09:56] Speaker 03:
There's really not a good reason.

[00:09:57] Speaker 03:
The law abhors a forfeiture, Your Honor.

[00:09:59] Speaker 03:
There's not a good reason from a judicial point of view to find a waiver in those circumstances.

[00:10:08] Speaker 03:
So to return to the merits of the argument,

[00:10:11] Speaker 03:
So this notion that we failed to explain how incompatible TCP and UDP evaluates could communicate with each other.

[00:10:22] Speaker 03:
The board found in a variety of contexts that allowing incompatible protocols to communicate via conversion was obvious.

[00:10:31] Speaker 03:
There's no, it doesn't explain why it's not obvious in this circumstance, which doesn't make a great deal of sense.

[00:10:40] Speaker 03:
The board found claim six obvious over Protologus' teaching of the use of both TCP and UDP in the same communication system, where they're both multi-port packets.

[00:10:49] Speaker 03:
They get converted together into single-port packets, reconverted and delivered.

[00:10:53] Speaker 03:
Those being in the same stream, those must be going between points that can speak to each other.

[00:11:01] Speaker 03:
And given that the patent itself nowhere explains how this is done, it doesn't explain how alternate data is ever sent, so it's actually improper to require us to show what the patent itself does not explain.

[00:11:21] Speaker 03:
As the court said last year in the Uber Technologies case, where the specification is entirely silent on how to transmit

[00:11:30] Speaker 03:
to transmit user locations and maps from a server, blah, blah, blah, suggesting that a person of ordinary skill in the art was more than capable of doing so.

[00:11:39] Speaker 03:
So here, you have a patent that has one sentence that talks about sending alternate data in response to a resend request.

[00:11:48] Speaker 03:
Never explains how it's done.

[00:11:50] Speaker 03:
In those circumstances, it suggests, according to this court's precedent,

[00:11:56] Speaker 03:
That it would have been obvious for an artisan to do that.

[00:11:59] Speaker 03:
I mean, I suppose in other contexts it might mean that there's insufficient support and respect for the claim, but that's not what we're talking about here.

[00:12:06] Speaker 03:
In these circumstances, the appropriate conclusion is that a poset would have known how to do it.

[00:12:12] Speaker 03:
And in those circumstances, the claim would have been obvious.

[00:12:17] Speaker 01:
Would you like to save your rebuttal time?

[00:12:19] Speaker 03:
Yes, I'll save my rebuttal time.

[00:12:19] Speaker 03:
Thank you.

[00:12:35] Speaker 02:
It please the court Mr. Ross again this time for the appellee the patent owner DPR I'd like to start by talking about the subset of claims 8 19 and 27 which was the last grouping that appellant talked about and this has to do with the waiver issue or Forfeiture if you want to call it that

[00:12:53] Speaker 02:
What has gone unstated is that the rule by which this is done is 37 CFR section 42.23b.

[00:13:04] Speaker 02:
This court has held that in reviewing a determination by the board under 42.23b, it is reviewed for an abuse of discretion and not merely substantial evidence.

[00:13:16] Speaker 02:
And on this record, I don't see how we can say that there was an abuse of discretion.

[00:13:20] Speaker 02:
But at the very outset, this court has another issue that it has to decide.

[00:13:25] Speaker 02:
This whole question of whether or not 37 CFR 42.23b was complied with was not even raised in the opening brief by Polycom.

[00:13:38] Speaker 02:
They drop a passing footnote not mentioning that.

[00:13:42] Speaker 02:
But as the court knows, this precedent, this court has repeatedly said, arguments only raised in a footnote are waived.

[00:13:49] Speaker 02:
That's the Ford Motor Company versus United States case, amongst others.

[00:13:53] Speaker 02:
And significantly, nowhere in the opening brief does Polycom argue that the board committed an abuse of discretion.

[00:14:03] Speaker 02:
It doesn't even do that in the reply brief.

[00:14:05] Speaker 02:
So this court has to first decide whether or not this entire line of argument is even properly before it on appeal.

[00:14:13] Speaker 02:
And we would submit that it's not.

[00:14:17] Speaker 02:
If the court does decide that that issue is properly before the court, I would submit that the board below did not commit an abuse of discretion.

[00:14:30] Speaker 02:
The argument made in the response to our first response at the board

[00:14:36] Speaker 02:
was clearly a new argument.

[00:14:38] Speaker 02:
Their initial position was only UDP is being considered in the petition.

[00:14:43] Speaker 02:
They then say, uh-oh, we're going to be dead wrong on that.

[00:14:46] Speaker 02:
So we now got to say UDP and TCP should be considered subsequently.

[00:14:52] Speaker 02:
But this court, in its Henny Penny case, said, quote,

[00:14:55] Speaker 02:
It is of the utmost importance that petitioners in the IPR proceedings identify with particularity the evidence that supports the grounds for the challenge for each claim in the petition.

[00:15:09] Speaker 02:
They did not identify this TCP argument in the petition, certainly without any particularity.

[00:15:17] Speaker 02:
And therefore, the board was completely right to say that it was a new argument.

[00:15:23] Speaker 02:
And it was completely within its discretion to say, we're not going to listen to that new argument.

[00:15:30] Speaker 02:
And that's not a function of whether or not we get a reply brief.

[00:15:34] Speaker 02:
It's not a function of whether there's any fairness or non-fairness.

[00:15:38] Speaker 02:
The question is not the same as with a waiver in a district court.

[00:15:42] Speaker 02:
Because here, a regulation controls.

[00:15:45] Speaker 02:
The question is, did they comply with the regulation?

[00:15:49] Speaker 02:
And they clearly did not.

[00:15:50] Speaker 02:
The board found they did not.

[00:15:53] Speaker 02:
And I don't think this court can substitute its judgment for the board.

[00:15:57] Speaker 02:
So it's not a question of whether or not there was an opportunity to consider the argument.

[00:16:03] Speaker 02:
The question is, did they comply with the regulation?

[00:16:05] Speaker 02:
They did not.

[00:16:05] Speaker 02:
They admit they did not.

[00:16:07] Speaker 02:
And therefore, that argument was impermissible and within the discretion of the board to refuse to hear.

[00:16:14] Speaker 02:
And I don't think this court should substitute its judgment on that.

[00:16:18] Speaker 02:
Now, even if you were to turn to the issue on the merits,

[00:16:23] Speaker 02:
The argument being made today is that it would still work under UDP-TCP hybrid embodiment, not mentioned in the petition, because of this conversion concept.

[00:16:35] Speaker 02:
Well, guess what?

[00:16:36] Speaker 02:
That conversion argument was not raised in their opening brief to this court.

[00:16:42] Speaker 02:
And therefore, it is forfeited as well, leaving them with nothing even on the merits, with respect to this subset of claims surrounding claim eight.

[00:16:53] Speaker 02:
Now, let me turn briefly, if I may, to the second subset of claims at issue here.

[00:16:57] Speaker 02:
This is claims 9, 20, and 28.

[00:17:02] Speaker 02:
And here, the standard of review is substantial evidence.

[00:17:06] Speaker 02:
First of all, every argument you saw in the briefs on this point, every argument just made by counsel here, was made to the board.

[00:17:16] Speaker 02:
No new evidence being pointed to here.

[00:17:18] Speaker 02:
No new arguments being made.

[00:17:20] Speaker 02:
All they are doing is asking you to substitute your judgment on the evidence of the record for the judgment of the board.

[00:17:29] Speaker 02:
And I would submit that that's not the proper approach on appeal here.

[00:17:34] Speaker 02:
Now, Your Honor asked a question about identifying the legal error.

[00:17:38] Speaker 02:
And you noticed there was some lag time in getting an answer.

[00:17:41] Speaker 02:
That's because there was no legal error here.

[00:17:44] Speaker 02:
The issue, there was no test.

[00:17:47] Speaker 02:
The reference was made, well, they got the test wrong or the test was too narrow.

[00:17:51] Speaker 02:
There was no test applied here.

[00:17:53] Speaker 02:
The board listened to and reviewed all the evidence and all the arguments submitted by appellant and did not credit them.

[00:18:02] Speaker 02:
They found them either not factually accurate or else simply said, that does not meet your burden

[00:18:10] Speaker 02:
before the board to prove by preponderance of the evidence that it is obvious.

[00:18:18] Speaker 02:
That's all the board did below.

[00:18:20] Speaker 02:
It did not engage in some sort of new legal precedent establishment or establish some sort of new test or apply the test.

[00:18:27] Speaker 02:
It simply said, you did not meet your burden.

[00:18:31] Speaker 02:
And that is a substantial evidence review.

[00:18:35] Speaker 02:
It did not also give undue weight to any particular set of facts.

[00:18:41] Speaker 02:
It simply said in every instance, you know, we just don't think you're establishing.

[00:18:45] Speaker 02:
You're not meeting your burden of proof here.

[00:18:47] Speaker 02:
We're listening to all the arguments.

[00:18:49] Speaker 02:
We're looking at all the evidence you're presenting.

[00:18:51] Speaker 02:
It simply doesn't get you there.

[00:18:54] Speaker 02:
That's not some sort of legal error.

[00:18:56] Speaker 02:
That's not some sort of new legal test.

[00:18:58] Speaker 02:
It's not something that's reviewed de novo by this court.

[00:19:02] Speaker 02:
We think the board clearly had substantial evidence for reaching the conclusions that it reached.

[00:19:07] Speaker 02:
And Your Honor, unless there are any questions on any of this, that's all I have.

[00:19:11] Speaker 02:
We'll rest on our argument today and argument in the briefs.

[00:19:14] Speaker 01:
Thank you, Mr. Ross.

[00:19:15] Speaker 01:
Mr. Eaton, you have some rebuttal time.

[00:19:29] Speaker 03:
Your honor, I'll be very brief.

[00:19:31] Speaker 03:
I would just point out that when the two arguments that the other side raises are, well, if you didn't raise it below, it's waived.

[00:19:39] Speaker 03:
And if you did raise it below, you lose.

[00:19:41] Speaker 03:
I think we're overlooking what the judicial process is.

[00:19:44] Speaker 03:
They haven't actually responded to any of the arguments that we made in this court today on the data registration claims.

[00:19:52] Speaker 03:
So I would put it to you, your honor, that they have essentially nothing to say in response to those.

[00:19:57] Speaker 03:
It's simply relying on the board's

[00:19:59] Speaker 00:
Judgment is not sufficient the George but board's judgment is subject to this for its review and they haven't responded to it also in situations involving forfeiture our court has said repeatedly that we still have the discretion to hear the issues if they were fully briefed and in this case that seems to be the case why couldn't we just go ahead and hear that and rule along the board's finding alternative findings

[00:20:26] Speaker 03:
You could your honor and that's that is that is part of our position here with respect to the alternate data claims remember the data registration claims there is no way If your honors don't have further questions for me all the time Okay, thank you.

[00:20:41] Speaker 01:
I think both counsel this case is taken under submission