[00:00:00] Speaker 05: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:07] Speaker 05: God save the United States and this honorable court. [00:00:12] Speaker 06: The first case for argument this morning is 20-1403 Unilock versus Apple. [00:00:20] Speaker 06: Can you help me with pronouncing your name? [00:00:23] Speaker 06: Is it Coyote? [00:00:25] Speaker 02: It is, Your Honor. [00:00:26] Speaker 02: That's the correct pronunciation. [00:00:27] Speaker 06: All right. [00:00:28] Speaker 06: Thank you. [00:00:28] Speaker 06: Please proceed. [00:00:31] Speaker 02: May it please the court, Brian Coyote of the Etheridge Law Group for Unilock, I want to start with claim construction. [00:00:37] Speaker 02: The board erred by construing intercepting as artificially including only intended and recipient devices as opposed to precluding all intended recipient devices. [00:00:49] Speaker 02: Under the broadest reasonable interpretation standard, this construction was not reasonable in light of the specification and prosecution history. [00:00:57] Speaker 02: Now, both the board's construction at Appendix 11 and the red brief at Page 38 hinge on the argument that intercepting is interchangeable with receiving. [00:01:08] Speaker 02: Both sides cite the same phrase in the specification. [00:01:11] Speaker 02: This is the received or intercepted phrase, which is on Columns 8, Lines 56 to 58, and draw opposite conclusions. [00:01:22] Speaker 02: that the phrase is distinguishing two different alternatives, which is supported by the ordinary and customary meaning of intercepting. [00:01:29] Speaker 02: Here, this issue can be resolved in Unilog's favor by looking at the examiner's own words. [00:01:35] Speaker 02: In particular, if you look at the examiner interview, and this is discussed on Blue Book 15, citing Appendix 840 to 841, the applicant initially proposed in an examiner interview [00:01:49] Speaker 02: that the network entity is receiving messages that are sent between two end users. [00:01:54] Speaker 02: And then in response, the examiner suggested the applicant further clarify the independent claims involve the network intercepting messages that are associated. [00:02:06] Speaker 02: So the examiner suggested a replacement of receiving with intercepting. [00:02:12] Speaker 02: And that's what the applicant's [00:02:16] Speaker 02: did do in the amendment. [00:02:18] Speaker 02: That's at page 833 of the appendix. [00:02:20] Speaker 02: The applicant noted in summarizing the examine interview that according to the examiner, such an amendment would overcome the prior art of record. [00:02:30] Speaker 02: This was not merely, Your Honor, replacing interchangeable terms as the applicant intends. [00:02:35] Speaker 02: Namely, when the examiner stated that a suggested amendment would overcome the prior art, he clearly signaled that interstepping is narrower and distinct from receiving. [00:02:45] Speaker 06: Well, sir, this is Judge Proust. [00:02:48] Speaker 06: I take your point, but it does remain the fact of the mouth that the spec seems to use the terms interchangeably. [00:02:57] Speaker 02: I respectfully disagree, Your Honor. [00:03:01] Speaker 02: I mean, there are two different ways you could read an or thing. [00:03:06] Speaker 02: I mean, or does not always mean things are interchangeable or alternative. [00:03:11] Speaker 02: You could say, you know, [00:03:13] Speaker 02: love or war, right? [00:03:15] Speaker 02: I mean, it could be two different things. [00:03:16] Speaker 02: It doesn't say, they could, all it's saying is that at that node, it could be received or intercepted. [00:03:22] Speaker 02: It's not trying to equate the two. [00:03:24] Speaker 02: There's no reading from that portion of the specification. [00:03:28] Speaker 02: And both parties merely side to that portion of the specification. [00:03:32] Speaker 02: Again, I think when read in the context of the examiner review, I mean, if they were interchangeable to address your honor's comment, [00:03:41] Speaker 02: Why would the examiner require the change of a word? [00:03:46] Speaker 02: I mean, this is something, you know, it's not like the examiner was suggesting something to clarify in the context of 112. [00:03:51] Speaker 02: He was stating that if you make this amendment and then you change receiving with intercepting, then it would overcome the part of record. [00:04:00] Speaker 02: And just as a matter of fairness, you know, this is a situation where this was a term that the examiner suggested. [00:04:08] Speaker 02: And he stated it would overcome the prior art of record. [00:04:11] Speaker 02: And now we have the same patent office approximately 10 years later saying that they mean the same. [00:04:19] Speaker 06: Well, I appreciate that some of this is a matter of fairness. [00:04:23] Speaker 06: But some of this is also a matter of notice and notice to the public. [00:04:28] Speaker 06: So do you not? [00:04:30] Speaker 06: to kind of appreciate that the public looking at this, I mean, we're under the broadest reasonable interpretation. [00:04:38] Speaker 06: And your interpretation is very much in the context of this and using that and that and ignoring this because this says more seems a little problematic in terms of the notice function. [00:04:51] Speaker 06: Does it not? [00:04:53] Speaker 02: I specifically disagree, Your Honor. [00:04:58] Speaker 02: Again, the word war does not always mean synonyms, you know, but it's saying here if you're two different alternatives. [00:05:05] Speaker 02: I would agree that if we're just limited to the received or intercepted quote in the specification that I would have less kind of traction to make the argument. [00:05:15] Speaker 02: But I think the prosecution history clarifies and that's part of the public record as well. [00:05:23] Speaker 02: And then with respect to BRI, since your honor has mentioned that, I want to make it clear that we are arguing, obviously, under BRI. [00:05:29] Speaker 02: Apple makes the point that, you know, we cited the Phillips. [00:05:34] Speaker 02: I mean, our only point there is, you know, drawing a similarity between Phillips and BRI that, you know, both have the commonality that they're presumed to have the ordinary and customary meaning. [00:05:47] Speaker 02: I mean, they use slightly different articulations for the standard. [00:05:50] Speaker 02: Plain and ordinary is, of course, Phillips. [00:05:52] Speaker 02: You know, we cite the translogic tech case where claim terms are presumed to have the ordinary and customary meaning. [00:05:59] Speaker 02: They're very similar, and that case was cited by the board. [00:06:02] Speaker 00: Counselor, this is Judge Raina. [00:06:04] Speaker 00: Am I hearing you correctly? [00:06:05] Speaker 00: Are you saying that the word or cannot link alternatives in the specification? [00:06:13] Speaker 02: Cannot link alternatives? [00:06:14] Speaker 02: No, I did not mean to suggest that, Your Honor. [00:06:16] Speaker 02: What I was saying was I think or could mean two things. [00:06:19] Speaker 02: It could mean [00:06:21] Speaker 02: what they are arguing, interchangeable, that received and intercepted means the same thing, and that or could also mean alternatives, and that's what we're arguing. [00:06:32] Speaker 02: So we are arguing alternatives, just to be clear. [00:06:37] Speaker 00: Okay. [00:06:39] Speaker 00: Can the word or link synonyms in the claim? [00:06:44] Speaker 02: It could, Your Honor, but again, we believe that the prosecution history, you know, [00:06:50] Speaker 02: Again, if you look just at the received or intercepted in the specification, if that was the only guidance, I think you wouldn't have anywhere to go. [00:06:57] Speaker 02: But the prosecution history, including the examiner's own words, show that the received or intercepted was not being interpreted by the examiner and the applicant as synonyms, as interchangeable. [00:07:11] Speaker 02: They were alternatives. [00:07:13] Speaker 02: It was, you know, received and intercepted as two different things. [00:07:20] Speaker 02: You know, as we mentioned in our brief, there could be some overlap. [00:07:23] Speaker 02: You know, I mean, we use the analogy to, you know, football where you could say that, you know, someone interceiving the ball first receives it, but that's really, you know, you can look at it that way. [00:07:35] Speaker 02: We think the best, you know, one analogy we point to in our brief is the technical definition of the wire tapping. [00:07:46] Speaker 00: Let's go back to your sports analogy. [00:07:51] Speaker 00: You're saying that one that intercepts the ball does not pass the ball to the intended recipient, right? [00:08:00] Speaker 00: But is it that what the gate controller here in Kalmanick does? [00:08:06] Speaker 00: Does it keep the ball? [00:08:07] Speaker 00: It passes it along. [00:08:10] Speaker 02: Yeah, of course, Your Honor. [00:08:11] Speaker 02: I mean, our point in focusing on the football analogy was to focus on the intended user. [00:08:17] Speaker 02: We weren't trying to suggest that, you know, the football analogy applies in every single sense and that, you know, someone intercepting the ball can then pass the ball along. [00:08:25] Speaker 00: Well, at the end of the day, it seems to me that it detracts from your argument and not from the board's construction. [00:08:36] Speaker 02: Okay, I understand you, Your Honor. [00:08:38] Speaker 02: That's why I wanted to focus on the [00:08:40] Speaker 02: McGraw-Hill technical dictionary definition that refers to, this is at Blue Book 11 to 12. [00:08:48] Speaker 02: You know, this is something where it refers to tapping or tuning into a telephone radio message not intended for the listener. [00:08:56] Speaker 02: And here the situation is very similar to a wiretap. [00:08:59] Speaker 02: The specification at 2 lines 61 to 63 describes that the intelligent user clients, and these are the entities making the call, have little to no knowledge of the network. [00:09:10] Speaker 02: And that is what is meant by something that is intended or unintended. [00:09:16] Speaker 02: From the perspective of the intelligent user network, they have no knowledge of any of the intermediate points or anything going on. [00:09:24] Speaker 02: The specification talks about policing network services. [00:09:28] Speaker 02: And then from the perspective of the caller, everything of the network is not intended. [00:09:32] Speaker 02: So similar, using a wiretap analogy, a criminal suspect making a call doesn't call directly to the FBI. [00:09:38] Speaker 02: Rather, the FBI would intercept or cap into the call unbeknownst to the suspect. [00:09:47] Speaker 02: I want to just briefly just spend a few seconds talking about the Kalmanak reference. [00:09:52] Speaker 02: The main point there is that the board's ruling depended exclusively on Kalmanak. [00:09:56] Speaker 02: That's at Appendix 22. [00:09:58] Speaker 02: Then the Apple attempts to justify it under kind of a phantom alternative ground. [00:10:06] Speaker 02: But as we state in our briefing, that is improper, un-nubasive because there was no alternative ground finding by the board. [00:10:17] Speaker 02: So then under administrative light of principles that are nubasive, that shouldn't be considered. [00:10:21] Speaker 02: And with that, I will save the rest of my time for rebuttal. [00:10:24] Speaker 06: Okay. [00:10:25] Speaker 06: Thank you. [00:10:26] Speaker 06: Mr. Prussia? [00:10:28] Speaker 01: Thank you, Your Honor. [00:10:28] Speaker 01: May it please the court? [00:10:30] Speaker 01: My name is Kevin Prussia and I represent the Cross Town Apple. [00:10:33] Speaker 01: The board's construction of intercepting was correct, and I'll start there. [00:10:38] Speaker 01: It was consistent with the structure of the claim, which makes clear that the network device is located between the endpoints of the call. [00:10:46] Speaker 01: And it's also consistent, as we've been discussing, with the specification, which describes this network policy enforcement entity, the entity that's doing the intercepting, [00:10:56] Speaker 01: And every time the patent describes this network policy enforcement entity, it describes its function as receiving or intercepting signaling messages. [00:11:06] Speaker 01: So if you look at Figure 4, for example, which is described in the specification at Column 9, Column 9 is at 109 of the appendix, the specification tells us that Figure 4 illustrates this network policy enforcement entity [00:11:20] Speaker 01: And when describing the network policy enforcement entity, again, this is the entity that's doing the intercepting, the patent tells us that it receives signaling messages between two network end devices and passes the messages to the processor for filtering. [00:11:35] Speaker 01: So we have the patent specification describing the entity that's doing the intercepting, this network policy enforcement entity, as receiving the message. [00:11:45] Speaker 01: So in some ways, you know, we talk about what's interchangeable, whether intercepting and receiving are interchangeable terms. [00:11:52] Speaker 01: I sort of look at it a little bit differently in the sense that we have to look at how the specification is describing the function of this node, this network policy enforcement entity. [00:12:02] Speaker 01: And it uses both words to describe the function of this entity. [00:12:06] Speaker 01: So it was perfectly appropriate for the board to construe it, consistent with the broadest reasonable interpretation, to include it, to construe it as receiving a signaling message between two endpoints on the device. [00:12:24] Speaker 01: And we see this again in the abstract. [00:12:26] Speaker 01: The abstract tells us that the network policy enforcement entity receives messages, associates the message with the known service, and makes the determination. [00:12:38] Speaker 00: At the end of the day, it does seem to me to be somewhat illogical that receiving and intercepting are interchangeable. [00:12:51] Speaker 01: Your Honor, what I would say is receiving is certainly broader than intercepting. [00:12:55] Speaker 01: I think it's an umbrella term. [00:12:56] Speaker 01: I think intercepting is a type of receiving. [00:12:59] Speaker 01: And I think that's what the specification is conveying. [00:13:02] Speaker 01: And the specification tells us that this network policy entity does receiving. [00:13:07] Speaker 01: And in terms of what intercepting means, intercepting means what you do with it after you receive it. [00:13:12] Speaker 01: And that's spelled out by the rest of the claim. [00:13:15] Speaker 01: The rest of the claim tells us that once you receive it, you check the message, you check whether the service is authorized, and if it's authorized, then you forward it through. [00:13:24] Speaker 01: And this goes back, I think, to the prosecution history, Your Honor, because this word intercepting is not something that had any special meaning to the patent owner. [00:13:34] Speaker 00: So how does that play with the meaning [00:13:37] Speaker 00: recipient and interceptor. [00:13:42] Speaker 00: If you looked at it from that perspective, do you arrive at the same conclusions? [00:13:48] Speaker 01: Yes, sir. [00:13:49] Speaker 01: And that's because the interceptor, the one receiving it, as the board properly construed the term, is an entity that's located between the endpoints of the call. [00:14:03] Speaker 01: And that was the point of distinction during prosecution, that when the examiner suggested the use of the word intercepting, it was to clarify at page 841 of the appendix, as it was put in the response, that intercepting messages are associated with a call between two end users. [00:14:25] Speaker 01: That was the point of distinction, that the network policy enforcement entity, if not the end user, [00:14:31] Speaker 01: but it's an entity sitting between the two end users, and that's what the board's construction conveys. [00:14:39] Speaker 04: Mr. Bresch, I'm sorry, were you done with that? [00:14:43] Speaker 04: I was going to ask a question about the cross appeal. [00:14:45] Speaker 04: This is Judge Bryson. [00:14:47] Speaker 01: Yes, sir. [00:14:48] Speaker 04: You're done with what you had to say on the main appeal? [00:14:52] Speaker 01: Yes, sir. [00:14:52] Speaker 01: I can move to the cross appeal. [00:14:53] Speaker 04: OK, very good. [00:14:54] Speaker 04: On the procedural point, I take it [00:14:58] Speaker 04: And correct me if this is wrong, but that the board's finding that your cross-references were insufficient, that problem would have been solved, I take it, had you cited to claim the discussion of claim 1C in connection with claim 18D. [00:15:20] Speaker 04: That was my takeaway. [00:15:22] Speaker 04: Is that yours as well? [00:15:24] Speaker 01: That is correct, Your Honor. [00:15:27] Speaker 01: All right. [00:15:28] Speaker 01: Sorry to interrupt. [00:15:29] Speaker 04: Well, that's all right. [00:15:30] Speaker 04: That was all I needed to know about that. [00:15:32] Speaker 04: So let me ask you then about the merits. [00:15:38] Speaker 04: Because the board, of course, not only ruled against you on the procedural point, but also then went on to pages 40 and 41, I think it is, of the opinion and addressed the merit. [00:15:54] Speaker 04: So turning to the merits. [00:15:58] Speaker 04: Let me ask you whether you see the Kalmanic reference as involving a determination of the proper codec specification based on two signals or just one. [00:16:20] Speaker 04: And I direct you specifically to the setup and the setup act signals. [00:16:27] Speaker 01: Yes, sir. [00:16:28] Speaker 01: It's based on one message. [00:16:30] Speaker 01: And I think the place to look at this is starting at page 26 of the appendix, which is the final written decision. [00:16:42] Speaker 01: And in the context of Claim 1, this is where the board, I think, got a little bit twisted. [00:16:48] Speaker 01: Because to start, I guess, with page 40, where your honor was, the board found that [00:16:53] Speaker 01: the determination of what codec is authorized is made by the terminating DTI. [00:16:59] Speaker 01: But that can't be right, and we know that can't be right, because in the context of Claim 1, the board found the exact opposite. [00:17:06] Speaker 01: The board found, with respect to Claim 1, that the gate controllers in CalMAN Act determined authorization based on codec specification. [00:17:14] Speaker 01: And that's at page 26 of the appendix. [00:17:17] Speaker 01: This is when it's reciting the arguments, which is then adopt [00:17:21] Speaker 01: in full in favor of us. [00:17:24] Speaker 01: So on page 26, the board says, the gate controllers receive the setup message. [00:17:29] Speaker 01: The setup message includes the coding field with the desired quality of service. [00:17:34] Speaker 01: And the board further found that on receipt of the setup message, the gate controllers, the gate controllers, not the terminating BTI, but the gate controllers determine what level of service has been authorized. [00:17:47] Speaker 04: And then after that... But is that not in response [00:17:51] Speaker 04: in the case of the codec specification to the message in the setup act message in which the terminating BTI advises the gate controller of what its authorization is. [00:18:12] Speaker 04: As I understand, this is explained in your petition and as I understand it, [00:18:20] Speaker 04: The first thing that happens is that there is a setup message in which the originating BTI explains that it has, let's say, three possible levels of codec specification. [00:18:34] Speaker 04: Then the recipient BTI responds, well, we have only one. [00:18:40] Speaker 04: And then the gate controller makes the determination that that, therefore, must be the one, because that's the only one on which they agree. [00:18:48] Speaker 04: Is that not correct? [00:18:51] Speaker 01: It's only partially correct, Your Honor, in the sense that first. [00:18:55] Speaker 01: And I think Figure 6 in CalMANAC, which is at 108.9, is a good illustration of it. [00:19:00] Speaker 01: And admittedly, Figure 6 is not specific to CODEC. [00:19:03] Speaker 01: It relates to caller ID. [00:19:04] Speaker 01: But the process flow is still the same. [00:19:07] Speaker 01: And if we look at Figure 6, the setup message originates from the BTI. [00:19:12] Speaker 01: It goes to the originating gate controller. [00:19:14] Speaker 01: The gate controller checks for authorization. [00:19:17] Speaker 01: This is what the board found with respect to CODEC on page 26. [00:19:21] Speaker 01: And once it does that, it sets up a gate setup. [00:19:26] Speaker 01: And we see that in Figure 6. [00:19:27] Speaker 01: That gate setup goes to the edge receiver. [00:19:30] Speaker 01: That gate setup tells the edge receiver to implement the authorized level of codex of the authorized level of service. [00:19:38] Speaker 01: The setup message then goes to the BTI. [00:19:41] Speaker 01: And then the BTI sends a setup acknowledgment. [00:19:44] Speaker 01: to tell the gate controller what the terminating BTI is authorized to receive. [00:19:53] Speaker 04: Right. [00:19:54] Speaker 04: The determination, the ultimate determination of what codec level will be used is made after the setup ACK message is sent. [00:20:05] Speaker 04: Is that not right? [00:20:07] Speaker 01: Well, no sir, in the sense that the gate controller has already made the determination that the sender, the caller, is authorized for a certain level of service. [00:20:19] Speaker 04: That's right, but the determination has not been made, has it not, as to what the callee is authorized? [00:20:26] Speaker 04: That is correct. [00:20:27] Speaker 04: That determination, as I understand it, is not made until after the setup ACK message is sent. [00:20:33] Speaker 01: That is correct. [00:20:35] Speaker 01: All right. [00:20:35] Speaker 04: Well, then why aren't those two separate messages rather than a single message, as is required under Claim 18? [00:20:44] Speaker 01: Because, Your Honor, the message that we are pointing to is the initial setup message. [00:20:49] Speaker 01: And that's the key message, because the setup message is the one that is intended for the BTI. [00:20:55] Speaker 01: The setup message has a destination address that goes from the caller to the callee [00:21:01] Speaker 01: And in that message, it contains the codec. [00:21:04] Speaker 01: And in that message, the gate, on receipt of that message, the gate controller intercepts it, checks it for authorization. [00:21:11] Speaker 01: And if it's approved, it sets up the gate setup and then allows the message to go through. [00:21:17] Speaker 01: And that's all that's required by the claim. [00:21:19] Speaker 04: Now, as to the... Now, my question, though, to you, to the extent that that is your argument, it does not seem to me that that's the argument that you made [00:21:30] Speaker 04: in the petition, because in the petition, you seem to be relying on the Set Up Act message as being the message that makes the ultimate determination. [00:21:43] Speaker 04: I'm looking at pages 36 and 37 of your petition. [00:21:49] Speaker 01: Yes, sir. [00:21:50] Speaker 01: And there are two points to make. [00:21:53] Speaker 01: First is that, of course, we have to read all of this. [00:21:57] Speaker 01: and consistent with in the context of the full claim. [00:22:03] Speaker 01: And so the discussion of CODEC in the petition actually starts within 1B in 26, I guess more specifically on 27, Your Honor. [00:22:16] Speaker 01: And in that portion, we describe within the setup message, we describe on 28 that [00:22:24] Speaker 01: how the setup message is received by the gate controller, which then uses that information to set up, to implement the setup message. [00:22:34] Speaker 01: We then go on to describe how in that particular situation, because it was authorized, the gate setup message had the same codec information. [00:22:43] Speaker 01: And in one feed, we then go on to describe what your honor just discussed, what happens after the setup message is feed, and the setup back then comes back. [00:22:56] Speaker 01: And the key here, of course, is that our theory is that the filtering step essentially collapses into the determining step. [00:23:04] Speaker 01: Once the gate controller makes the determination that the service is authorized, [00:23:12] Speaker 01: and forwards it through. [00:23:13] Speaker 01: And that's what we show in 1B and 1C. [00:23:18] Speaker 01: And that's where we think the board got it wrong because the board agreed with us on that point with respect to call one and reached an opposite conclusion with respect to claim 18 when we relied on the same evidence, essentially the same claim language. [00:23:32] Speaker 04: Let me ask you one more question, if I could, with respects to the issue of whether a single message [00:23:41] Speaker 04: has to contain the various multiple services that are referenced in claim 18. [00:23:49] Speaker 04: Now, as I understand it, the claim 18 refers to the intercepting, requesting, determining, and filtering steps all being done with respect to a single message, not multiple messages. [00:24:03] Speaker 04: Isn't that correct? [00:24:04] Speaker 01: I agree with that, sir. [00:24:05] Speaker 01: Yes. [00:24:05] Speaker 04: Right. [00:24:06] Speaker 04: And the message that's filtered in step four is the same single message that was intercepted in step one, right? [00:24:13] Speaker 01: Correct. [00:24:14] Speaker 04: All right. [00:24:15] Speaker 04: So I take it that means that the determination of whether the user is authorized to receive at least two of the name services is done before that single message is filtered. [00:24:26] Speaker 04: And the filtering of that message is done based on the authorizations that have been determined at the determining step, right? [00:24:33] Speaker 01: That's correct, sir. [00:24:35] Speaker 01: Yes. [00:24:35] Speaker 01: I just wanted to set up a message for that. [00:24:37] Speaker 01: Yes. [00:24:37] Speaker 04: Right. [00:24:38] Speaker 04: So if CallMatic provides the caller ID authorization is determined in response to one message, and the code specification is determined in response to a different message, this is, I understand you don't necessarily agree with that. [00:24:52] Speaker 04: But if that's the case, then the method used in CallMatic differs from the method used in claim 18. [00:24:59] Speaker 04: Isn't that correct? [00:25:05] Speaker 01: In that sense, yes, it would. [00:25:07] Speaker 01: Okay. [00:25:09] Speaker 01: And I see I'm moving into my rebuttal time, so unless Judge Bryce may have any additional questions, I'd like to reserve my time. [00:25:17] Speaker 03: No, I don't. [00:25:19] Speaker 06: Okay. [00:25:19] Speaker 06: Thank you. [00:25:21] Speaker 06: We'll reserve two minutes of rebuttal if we need it on the cross appeal. [00:25:29] Speaker 02: Mr. Cody? [00:25:29] Speaker 02: Your Honor, sure, thank you. [00:25:31] Speaker 02: This is Brian Coyote. [00:25:32] Speaker 02: Just briefly, Your Honor, [00:25:34] Speaker 02: On the appeal, I heard counsel say that, now say that receiving is broader than intercepting. [00:25:44] Speaker 02: That is a change of position to what they were taking in the brief. [00:25:47] Speaker 02: They said consistently both below and here that they're interchangeable. [00:25:52] Speaker 02: It seems to be somewhat of a concession. [00:25:54] Speaker 02: He's doing a slightly different tweak on what we acknowledge, but we agree with the comment of Judge Raina in that [00:25:59] Speaker 02: The term receiving is a very common term. [00:26:04] Speaker 02: It's in a number of these telephone communication type claims. [00:26:09] Speaker 02: Intercepting is not. [00:26:11] Speaker 02: And so they do have a different meaning. [00:26:13] Speaker 02: We disagree what that meaning is. [00:26:14] Speaker 02: We don't think it's the concept of the intermediary concept that Apple is now proposing. [00:26:21] Speaker 02: And the reason why it's not is if I could turn your honor's attention to the interview summary [00:26:29] Speaker 02: which is that Appendix 840. [00:26:31] Speaker 02: The original language at the bottom of the page is the comment was receiving and filtering messages that are sent between two end users. [00:26:41] Speaker 02: So the intermediate concept was already there. [00:26:45] Speaker 02: And then what the examiner proposed, which is on the top of page 841, is the word intercepting messages, a network intercepting message that is associated with a call between two end users. [00:26:58] Speaker 02: So between two NUs, it was already in the applicant's initial proposed amendment. [00:27:04] Speaker 02: What the examiner was doing here was interjecting the notion of replacing the word receiving with intercepting. [00:27:10] Speaker 02: And when you look at what the board construed, this intercepting ad, their construction is a network entity receives the message and the network entity is not intended to be supported by the prostitute tree. [00:27:25] Speaker 02: It doesn't make any sense. [00:27:27] Speaker 02: Why would the examiner suggest a replacement of the word receiving to intercepting if then the real meaning of it was just receiving all along? [00:27:41] Speaker 02: I mean, again, this is not the context of something where he's just saying, I want to clarify for 112 because I think you have a 112 issue. [00:27:49] Speaker 02: The examiner was saying, if you change this word, receiving to intercepting, it's going to overcome the prior art. [00:27:55] Speaker 02: And that's what the applicant did. [00:27:57] Speaker 02: On the... Go ahead. [00:28:00] Speaker 04: Could I ask you to turn to the cross-appeal? [00:28:02] Speaker 04: I have... This is Judge Bryson. [00:28:04] Speaker 04: I have some questions on that. [00:28:06] Speaker 04: Are you done with the discussion of the appeal? [00:28:11] Speaker 02: I think so, Your Honor, yes. [00:28:12] Speaker 04: Yeah, okay. [00:28:13] Speaker 04: So setting aside the procedural problem that is the cross-reference issue that we talked about earlier, what is the... [00:28:24] Speaker 04: What is the answer in your view to Mr. Prussia's argument about the single signal being sufficient or being shown by CalMEDIC to establish the codec specification? [00:28:43] Speaker 02: Well, I don't want to repeat our briefs, and I think it's in our briefs. [00:28:47] Speaker 04: But your brief didn't really discuss this in much detail. [00:28:49] Speaker 04: So basically what your brief said was that the board got it right. [00:28:53] Speaker 04: So I'm interested in hearing what your response is to what Mr. Presha has to say today and what is in his red brief and reply brief about the single signal issue. [00:29:05] Speaker 02: Sure. [00:29:06] Speaker 02: I understand what Mr. Presha was saying today. [00:29:08] Speaker 02: It's kind of a... [00:29:11] Speaker 02: you know, somewhat of an apples and oranges approach in that he's picking a signal from one part and then, you know, combining it from another part. [00:29:21] Speaker 02: So it just seems logically inconsistent as he's applying it. [00:29:26] Speaker 02: You know, I think it's also, I know Your Honor, this question was directed to the procedural part, but just hearing Mr. Prush's argument is related to the procedural point in that, you know, the complexity to understand it [00:29:39] Speaker 02: is flawed by, you know, kind of the simple recitation and how they kind of try to incorporate everything. [00:29:48] Speaker 02: And the fact that they had to kind of expand, you know, their simple reference to C mapping for claim 1E into six pages of reply kind of makes our point that the mapping was insufficient. [00:29:59] Speaker 04: Well, let's assume that if they had put in a reference to 1C, [00:30:06] Speaker 04: in the 18E, I guess it is, that that would have done the trick. [00:30:11] Speaker 04: Let's assume that there are no further problems with the procedural point. [00:30:17] Speaker 04: But what's wrong with the argument that claim 18 would be satisfied with respects to the caller's authorization, not the caller's authorization, but the caller's authorization on a one-signal basis? [00:30:34] Speaker 04: Do you understand the question? [00:30:35] Speaker 04: That's a shorthand way of putting it, but do you understand the caller versus callee authorization issue? [00:30:42] Speaker 02: I'm not sure if I fully follow Your Honor's question, Your Honor. [00:30:45] Speaker 04: Well, in other words, the red brief says, look, it's not necessary to have the callee [00:30:52] Speaker 04: authorization. [00:30:53] Speaker 04: All that's necessary is to have the caller's authorization in order to satisfy claim 18 and call NENEC, they say, shows that. [00:31:06] Speaker 04: What's wrong with that argument? [00:31:10] Speaker 02: I think, Your Honor, our response is that both are required, that it's not one or the other. [00:31:19] Speaker 04: Well. [00:31:22] Speaker 04: Is there a reason that you think that's right? [00:31:26] Speaker 04: Looking at the language of Claim 18, what is the basis for making that argument based on the language of Claim 18? [00:31:42] Speaker 02: Your Honor, I'm sorry. [00:31:43] Speaker 02: I don't have a response right now at this moment. [00:31:45] Speaker 02: All right. [00:31:48] Speaker 02: Yeah. [00:31:48] Speaker 02: OK. [00:31:51] Speaker 06: Anything further, Judge Bryson or Judge Raina? [00:31:54] Speaker 06: No, no. [00:31:55] Speaker 06: Okay. [00:31:56] Speaker 06: Mr. Prussia, two minutes for rebuttal. [00:32:00] Speaker 01: Thank you, Judge Post. [00:32:01] Speaker 01: Briefly, just on the procedural point, Your Honors, I think it's important to note that the patent owner never complained about any of this below. [00:32:10] Speaker 01: The patent owner did not move to strike our reply. [00:32:13] Speaker 01: The patent owner never argued that we were expanding the record with our reply. [00:32:17] Speaker 01: And there's a reason for that, and that's because [00:32:21] Speaker 01: the theory was disclosed. [00:32:23] Speaker 01: And if we look at Appendix 157, this is with respect to Claim 1 and specifically the filtering limitation of Claim 1. [00:32:34] Speaker 01: What we disclose at the very first sentence of that section of the petition is that the 552 patent describes several different filtering actions that may be performed, including forwarding the message on unaltered. [00:32:51] Speaker 01: is a direct quote, or rather, the basis for that is in from column seven from the... Where are you reading from, Mr. Price? [00:33:02] Speaker 04: I'm sorry. [00:33:03] Speaker 04: I didn't catch your reference. [00:33:04] Speaker 04: Where are you reading from? [00:33:06] Speaker 01: Yes, Judge Bryson. [00:33:07] Speaker 01: It's 157 of the appendix, page 39 of the petition. [00:33:12] Speaker 01: All right. [00:33:13] Speaker 01: And we're describing the theory here, and the theory is that the filtering limitation is met [00:33:18] Speaker 01: once the message has been determined to be authorized and is then forwarded on unaltered. [00:33:25] Speaker 01: And that comes directly out of the 552 patent. [00:33:29] Speaker 01: And the basis for that is column 16. [00:33:31] Speaker 01: And I'm at 112 of the appendix. [00:33:33] Speaker 01: So the 552 patent, column 16, line 18. [00:33:37] Speaker 01: This is where the 552 patent spells out its filtering rules and actions. [00:33:43] Speaker 01: And the number one filtering rule [00:33:45] Speaker 01: is forwarding the message on unaltered to the next hop in the path to the intended recipient. [00:33:52] Speaker 01: So what that means, Your Honor, is that in that scenario, when a message is forwarded on unaltered, everything above, meaning everything above in the claim, all the other limitations, once those limitations are met, all that needs to be shown is forwarding. [00:34:09] Speaker 01: That's the theory that we disclosed. [00:34:11] Speaker 01: And sure, I suppose the board, it would have been [00:34:13] Speaker 01: better for us to, I guess, cut and paste or incorporate by reference everything that we said above. [00:34:20] Speaker 01: But there really is no need to do that. [00:34:21] Speaker 01: And I think that's reflected by the fact that Patent Owner itself never complained about our disclosure. [00:34:26] Speaker 01: Patent Owner never said we had no notice of this. [00:34:33] Speaker 01: And then just one last final point, Your Honor. [00:34:35] Speaker 01: And again, just to reiterate, the key point here in terms of [00:34:40] Speaker 01: why the board got this wrong. [00:34:42] Speaker 01: It's reflected by the fact that in the context of Claim 1, they looked at the setup message and made the determination, or made the finding, I should say, that the gate controllers made the determination to filter that setup message for codex specification. [00:34:57] Speaker 01: If it was enough for Claim 1, it should have been enough for Claim 18. [00:35:00] Speaker 01: And unless, Your Honor, I have any additional questions, I yield whatever time I have. [00:35:07] Speaker 06: Colleagues, hearing none, thank you. [00:35:10] Speaker 06: We thank both sides and the case is submitted. [00:35:12] Speaker 06: Thank you. [00:35:15] Speaker 06: Thank you, Your Honor.