[00:00:00] Speaker 03:
Our second case this morning is 20.237 Trend Micro Inc.

[00:00:06] Speaker 03:
versus Cup Computing.

[00:00:08] Speaker 03:
And here we start with Mr. Panikowski.

[00:00:20] Speaker 04:
Good morning, Your Honors.

[00:00:22] Speaker 04:
Stanley Panikowski for Appellant Trend Micro.

[00:00:26] Speaker 04:
The board's decision should be vacated under either the express claim construction that the board correctly adopted or the implicit construction that the board incorrectly applied.

[00:00:40] Speaker 04:
Either way, no substantial evidence supports the board's conclusion

[00:00:45] Speaker 04:
that the prior art reference SICDAR does not meet the dynamically isolating limitation.

[00:00:51] Speaker 03:
So I can be clear here.

[00:00:53] Speaker 03:
As I understand it, there are further limitations with respect to Claim 7 of the 272, which would have to be addressed by the board on remand, correct?

[00:01:05] Speaker 03:
Yes, Your Honor, that is correct.

[00:01:06] Speaker 03:
What about with respect to Claim 16 of the 272 and Claim 7 of the 079?

[00:01:14] Speaker 03:
left for the board to do, if we agree with you?

[00:01:17] Speaker 04:
Your Honor, on claim seven of the 079 patent, there are also limitations and arguments that CUP has made that the board would need to address on a remand.

[00:01:27] Speaker 04:
With respect to claim 16 of the 272 patent, there is a lot less there.

[00:01:33] Speaker 04:
There's not as much.

[00:01:35] Speaker 04:
But because the board

[00:01:37] Speaker 04:
Your Honor, Trend Micro's position would be ultimately that there is nothing with claim 16 of the 272 patent.

[00:01:46] Speaker 04:
You're not dealing with the right reference.

[00:01:49] Speaker 00:
Are there unresolved disputes about claim elements other than this one?

[00:01:57] Speaker 04:
Your Honor, not that I can identify with respect to claim 16 of the 272 patent.

[00:02:06] Speaker 04:
The board didn't go through the analysis in terms of what you would get when you're combining SICDAR

[00:02:14] Speaker 04:
with the admitted prior art that is relied on for Claim 16.

[00:02:19] Speaker 04:
So even though on remand, Trend Micro's position would be that we already have all of the pieces in place from the board's decision on Claim 1, as well as the prior art disclosures.

[00:02:32] Speaker 04:
And therefore, it would be a fairly ministerial task for the board to find Claim 16 unpatentable.

[00:02:40] Speaker 04:
In this court, Trend Micro hasn't asked for an outright reversal on that claim simply to err on the conservative side in light of this board's Kacken decision, which presumptively will remand to the board when the board hasn't necessarily put all of the pieces together once the error is corrected.

[00:03:02] Speaker 01:
So just to be clear, for the three claims at issue, you're not asking us to reverse on any of them.

[00:03:07] Speaker 04:
Correct, Your Honor.

[00:03:09] Speaker 04:
What Trend Micro seeks is for this board, this court, to tell the board that it got the dynamically isolating analysis wrong, and that SICDAR does, in fact, disclose the dynamically isolating limitation.

[00:03:27] Speaker 04:
No substantial evidence supports a contrary conclusion.

[00:03:31] Speaker 04:
And then to remand to the board in order to, one,

[00:03:36] Speaker 04:
address the additional limitations of claim 7 of both patents, as well as to put the pieces together under claim 16 of the 272 patent.

[00:03:48] Speaker 01:
On your view, would we be asking the board to do anything further on dynamically isolating, or you want us to shut that part down in your favor?

[00:03:57] Speaker 04:
Correct, Your Honor, it is the latter.

[00:04:00] Speaker 04:
The record here is such that this court can put an end to the dispute on dynamically isolating, at a minimum, this court, after correcting the board's implicit construction and saying, no, your express construction, which Kapano does not dispute, is correct.

[00:04:20] Speaker 04:
At the very least, this court

[00:04:23] Speaker 04:
would remand to the board in order to apply the correct construction.

[00:04:27] Speaker 04:
But Trend Micro's position is that that step is not necessary on the dynamically isolating limitation, because we have a sufficient record here where no substantial evidence would support any conclusion that SICDAR does not disclose both elements of the express construction.

[00:04:45] Speaker 04:
We have the first element of the express construction, which is

[00:04:49] Speaker 04:
DHCP or other source of addresses and Based on the plain language of that construction any source of addresses would satisfy it it may be an odd syntactical phrase for the board to use but logically

[00:05:10] Speaker 04:
Any source must be either DHCP or other source of addresses.

[00:05:15] Speaker 04:
In the same way.

[00:05:16] Speaker 00:
And just to be clear, if that language appeared in claim language, we might well think, oh, there must be something about the choice to use a A or anything else.

[00:05:31] Speaker 00:
So that it might suggest that a or anything else phrase is different from any source But we're not interpreting claim language.

[00:05:42] Speaker 00:
We're interpreting a you know more casual Set of words that the board used in construing the claim language, which logically is identical to any source and

[00:05:54] Speaker 04:
Yes, that is correct, Your Honor.

[00:05:56] Speaker 04:
Had that language appeared in the claim, it would still on its face mean any source, but there might be a reason for this court to then look through the specification, look through the prosecution history to, as Your Honor said, see if

[00:06:15] Speaker 04:
the intrinsic evidence ascribes any significance to that particular choice of phrasing.

[00:06:20] Speaker 04:
But here we don't have that.

[00:06:22] Speaker 04:
It was simply a construction that the board adopted in the course of looking at the petition and then CUP's preliminary response.

[00:06:32] Speaker 04:
Neither party asked for a construction of this term.

[00:06:35] Speaker 04:
But the board perceived that Cupp was relying on the dynamically isolating limitation to try to distinguish SICDAR.

[00:06:44] Speaker 04:
The board discerned that Cupp was asking the board to limit dynamically isolating to DHCP, which Cupp later brought in after the institution decision to dynamic addressing protocol.

[00:06:57] Speaker 03:
In the specification, is there any discussion of a source of addresses other than DHCP?

[00:07:09] Speaker 04:
Not specifically, Your Honor.

[00:07:12] Speaker 00:
When the patent- What work did your use of the word specifically do in your answer?

[00:07:19] Speaker 00:
Not specifically.

[00:07:21] Speaker 04:
Right.

[00:07:21] Speaker 04:
That the patent does not

[00:07:25] Speaker 04:
does not expressly identify any source of addresses other than DHCP.

[00:07:33] Speaker 04:
It gives DHCP as an exemplary source of addresses in discussing Figure 19.

[00:07:40] Speaker 04:
And the discussion of Figure 19 is prefaced.

[00:07:43] Speaker 03:
Well, it doesn't say DHCP has to be used.

[00:07:46] Speaker 03:
It says may be used, right?

[00:07:48] Speaker 04:
That is correct, Your Honor.

[00:07:50] Speaker 04:
What Figure 19

[00:07:53] Speaker 04:
is one embodiment of the invention.

[00:07:57] Speaker 04:
And so the discussion in column 19 of the 272 patent prefaces this discussion of figure 19 by saying, in an embodiment.

[00:08:06] Speaker 04:
And then when we get down to the specific specification passage that the board focused on, that's at column 19, lines 54 to 65, the specification is saying that the NAT engine uses DHCP.

[00:08:23] Speaker 04:
in performing this translation process.

[00:08:27] Speaker 04:
And as the board correctly construed the claims, then dynamic isolation is the result of that translation process.

[00:08:36] Speaker 04:
It did not say, the specification did not say that DHCP must be used, that it's the only thing that the NAC can use.

[00:08:45] Speaker 04:
It didn't say that it is the present invention.

[00:08:48] Speaker 04:
It didn't even refer to that discussion as a preferred embodiment.

[00:08:53] Speaker 04:
That is simply in an embodiment.

[00:08:55] Speaker 03:
And moreover, Your Honors, at this point, at page 18 of its response brief...

[00:09:07] Speaker 04:
Yes, Your Honor, that is correct.

[00:09:09] Speaker 04:
At page 18 of its response brief, CUP expressly agreed to the board's construction that it had previously contested.

[00:09:17] Speaker 04:
Therefore, we are in fact past that point, even though in our opening brief, Trend Micro showed that the board's expressed construction was correct, not knowing at that point if CUP was going to continue to contest that construction.

[00:09:33] Speaker 01:
Can we talk about SICDAR?

[00:09:35] Speaker 01:
Yes, Your Honor.

[00:09:35] Speaker 01:
The board found that it did not disclose what the other source of addresses was, and that your expert was merely conclusory on that point, right?

[00:09:45] Speaker 01:
Yes, Your Honor.

[00:09:45] Speaker 01:
So first of all, don't we have to accept that, at least if there's substantial evidence for those findings?

[00:09:51] Speaker 01:
And if so, does that mean that we should affirm what the board did?

[00:09:58] Speaker 04:
No, Your Honor, it doesn't mean any of that.

[00:10:01] Speaker 04:
First of all,

[00:10:03] Speaker 04:
The Boars Express claim construction requires only that there be a source of the IP addresses.

[00:10:10] Speaker 04:
The Boars claim construction does not say that you need to identify the source.

[00:10:16] Speaker 04:
It's not as if this

[00:10:18] Speaker 04:
claim has some limitation in there that says, and then the processor writes down what the source of the IP address is.

[00:10:29] Speaker 01:
And from what you were just saying to us, I understand, but help me if I'm wrong, the patent that's being challenged also doesn't disclose specifically what the other source of address is.

[00:10:40] Speaker 01:
Is that right?

[00:10:40] Speaker 04:
That is correct, Your Honor.

[00:10:42] Speaker 04:
And therefore, the board's assertion that Dr. Jacobson's testimony is entitled to no deference because it's conclusory is not the type of finding to which this court defers under the substantial evidence standard for several reasons.

[00:10:58] Speaker 04:
One, this is not a situation where you even need expert testimony to discern that the construction is met.

[00:11:07] Speaker 04:
construction here where the Sun or other object in the solar system, I wouldn't need an astronomer to tell me that any object in the solar system would meet that definition, nor that this lectern would meet that definition.

[00:11:23] Speaker 04:
Likewise here, you didn't even need an expert to say what SICDAR explicitly discloses.

[00:11:29] Speaker 04:
And therefore, this is like this court's decision in Samsung versus UUSI, cited at page 29 of our opening brief, where the board tried to label what was really an implicit claim construction issue like this one as one related to the, quote, credibility of expert testimony.

[00:11:49] Speaker 04:
Here, you don't even need it.

[00:11:50] Speaker 04:
And then when you focus on the expert testimony, that testimony is not conclusory.

[00:11:55] Speaker 04:
It is concise.

[00:11:57] Speaker 04:
You don't need very many words to explain that any address source will meet the now agreed upon construction DHCP or other source of addresses.

[00:12:12] Speaker 04:
Unless your honors have any further questions at this point, I would like to reserve the rest of my time for rebuttal, please.

[00:12:19] Speaker 03:
Okay.

[00:12:21] Speaker 03:
Let's see, Mr. Hand.

[00:12:33] Speaker 02:
Thank you again, Your Honors.

[00:12:35] Speaker 02:
May it please the court?

[00:12:36] Speaker 02:
May it proceed?

[00:12:38] Speaker 03:
Yes.

[00:12:39] Speaker 02:
Thank you.

[00:12:41] Speaker 02:
So Your Honors, unlike the appeal that I just argued, this appeal deals with the claim construction that is agreed to by all the parties at this stage of the case.

[00:12:52] Speaker 02:
All the parties agreed to what the term dynamically isolating means.

[00:12:56] Speaker 03:
So it doesn't have to be DCHP?

[00:12:58] Speaker 02:
It can be DCHP or it has to be another source of addresses.

[00:13:03] Speaker 02:
It has to be something similar to DHCP that has source of addresses.

[00:13:07] Speaker 03:
It has to be something similar?

[00:13:09] Speaker 03:
Where does it say that?

[00:13:10] Speaker 02:
Well, the way that it's written is DHCP or other source of addresses.

[00:13:15] Speaker 02:
DHCP is a source of addresses.

[00:13:17] Speaker 02:
So it has to be another source of addresses.

[00:13:19] Speaker 02:
That's what I was meaning, Your Honor, when I said that.

[00:13:23] Speaker 02:
And the only dispute here is a factual dispute in terms of what SICDAR discloses.

[00:13:29] Speaker 02:
The board specifically found that SICDAR discloses static NAT, which is Network Address Translation.

[00:13:37] Speaker 03:
Well, it's found that it discloses a single address, which is the firewall.

[00:13:42] Speaker 03:
Quite odd footnote on 835 in which it says the one-to-one mapping is irrelevant is disclosed in SICDAR.

[00:13:52] Speaker 03:
What in heaven's name do they mean by that?

[00:13:55] Speaker 02:
What they mean by that, Your Honor, is that it's a static address translation, static network address.

[00:14:01] Speaker 03:
But it's not a single address.

[00:14:03] Speaker 02:
Well, when it says one-to-one mapping, that means it's a predetermined static address.

[00:14:09] Speaker 03:
No, no, you're not answering my question.

[00:14:11] Speaker 03:
I'm sorry.

[00:14:11] Speaker 03:
SICDAR does not have a single firewall address that shows an alternative embodiment, where that's not the case, right?

[00:14:22] Speaker 02:
I don't agree.

[00:14:22] Speaker 02:
I think that the only disclosure.

[00:14:24] Speaker 03:
No, what's the one-to-one mapping embodiment?

[00:14:28] Speaker 02:
Maybe I'm misunderstanding the question, because SICDAR only discloses static address mapping.

[00:14:33] Speaker 03:
No, but you're not dealing with the same issue that I'm dealing with.

[00:14:37] Speaker 03:
Okay.

[00:14:38] Speaker 03:
The board said that SICDAR discloses only a single address, which is the firewall.

[00:14:43] Speaker 03:
That is incorrect, correct?

[00:14:46] Speaker 03:
They're wrong about that.

[00:14:49] Speaker 01:
I don't think that they're wrong about that.

[00:14:51] Speaker 01:
Really?

[00:14:52] Speaker 01:
Then what is the one-to-one embodiment?

[00:14:54] Speaker 01:
How is it different than the main embodiment in SICDAR?

[00:14:58] Speaker 02:
So the one-to-one mapping is a predetermined static address that's assigned by the firewall.

[00:15:05] Speaker 02:
And it's a predetermined address.

[00:15:09] Speaker 01:
and it can map to a single predetermined address that's behind the firewall.

[00:15:25] Speaker 01:
Public address, you know, translated for each individual private address.

[00:15:31] Speaker 02:
OK, I see what you're saying.

[00:15:32] Speaker 02:
OK, so yes, the main embodiment that was focused on by the board in trend is that you have multiple private addresses that come through the firewall and a single static address that goes through.

[00:15:45] Speaker 03:
So the board was wrong in saying that SICDAR discloses only a single address corresponding to the firewall.

[00:15:53] Speaker 02:
I can't say that, no, there is only a single address corresponding to the firewall.

[00:15:59] Speaker 01:
But sometimes, if you have two different private addresses, you may end up in SICDAR with two different public addresses, correct?

[00:16:07] Speaker 02:
If you have two, okay, so on the one-to-one mapping, if you have a private address, it can go to a static address that's public, that's not the firewall's address.

[00:16:17] Speaker 02:
Does that answer the question?

[00:16:18] Speaker 01:
Yeah, and then if I have a second private address, I could get a second public address in SICDAR, not the same as the first public address, correct?

[00:16:26] Speaker 02:
If you don't follow the one-to-one mapping, you're gonna get the firewall's address.

[00:16:30] Speaker 01:
If I don't, but if I follow the one-to-one mapping, I will get a different address than I got the first time around, right?

[00:16:35] Speaker 02:
It will be, yes, two different addresses that come through, but they're both static.

[00:16:38] Speaker 01:
So how can the board tell us that that's irrelevant?

[00:16:41] Speaker 02:
Because they're both static.

[00:16:44] Speaker 02:
And here's a definition from the board on APPX 2.1 is that static address translation is in which private addresses are statically mapped to specific fixed public addresses.

[00:16:58] Speaker 02:
That's the definition of a static address mapping.

[00:17:02] Speaker 02:
It's not on the fly when it is needed and on the fly as it comes through.

[00:17:08] Speaker 02:
That's why the board said it's irrelevant.

[00:17:10] Speaker 03:
Well, maybe so.

[00:17:11] Speaker 03:
But that's not consistent with its claim construction and rejection of your construction, which is set forth on the 21 and 22 of the board's decision.

[00:17:29] Speaker 02:
Maybe I'm not following you, Your Honor.

[00:17:32] Speaker 02:
a static one-to-one mapping is completely different than a dynamic mapping.

[00:17:40] Speaker 02:
A dynamic mapping means that as an application address comes through, you're going to, on the fly, select an address.

[00:17:50] Speaker 00:
One on the fly select, as opposed to on the fly swap.

[00:17:55] Speaker 02:
OK, that's fine.

[00:17:56] Speaker 00:
On the fly, you're going to.

[00:18:00] Speaker 00:
The following is part of the same conversation we're having, but if not anyway, I thought that part of what confused me about the board was that it was using static versus dynamic in two quite different senses.

[00:18:16] Speaker 00:
The sense of dynamic that it adopted has to do with when the swapping occurs, when and as needed.

[00:18:24] Speaker 00:
It doesn't have to do with the one-to-one or one-to-many or many-to-one correspondence between the thing being entering and the thing that is exiting.

[00:18:38] Speaker 00:
And it was using, I thought, static some of the time, as I think you are, to refer to invariable as opposed to a notion that has to do with when the swap occurs.

[00:18:54] Speaker 02:
So I think that the way that the board was describing static versus dynamic is at a high level saying SICDAR is static network address translation, whereas the patented issue is dynamic network address translation.

[00:19:11] Speaker 02:
The difference is is if you have a specific mapping a predetermined address before the before anything comes into the firewall if I have something specific that's set forth for that address that stack that's not changing a dynamic isolating by dynamically isolating something that's coming in our packet that's coming in application from a packet that's coming in and

[00:19:38] Speaker 02:
On the fly, you're applying an address to that application so that it's not static.

[00:19:45] Speaker 01:
But you may have a preset list of addresses that you're going to apply in the translation.

[00:19:52] Speaker 01:
Why isn't the determination as to whether it's dynamic or static just when do you apply the translation as opposed to when you figured out what the translation might be?

[00:20:04] Speaker 01:
Aren't those two different things?

[00:20:05] Speaker 01:
And isn't the patent really about when you apply the translation?

[00:20:12] Speaker 02:
No.

[00:20:12] Speaker 02:
The patent is about obtaining those addresses and applying those on the fly.

[00:20:17] Speaker 01:
So to be dynamic, you have to do both on the fly, when and as needed.

[00:20:23] Speaker 02:
Correct.

[00:20:23] Speaker 01:
When and as needed.

[00:20:24] Speaker 03:
And you have to have a source.

[00:20:25] Speaker 03:
You agreed to the board's client construction.

[00:20:29] Speaker 03:
I mean, maybe you can argue that the client construction is wrong.

[00:20:31] Speaker 03:
But you didn't.

[00:20:32] Speaker 03:
You agreed to it.

[00:20:36] Speaker 03:
And that includes the rejection of your position in connection with the claim construction.

[00:20:42] Speaker 03:
So you're asking us to do something that you gave up.

[00:20:47] Speaker 02:
But the board, actually, if you look at its analysis, specifically said that their construction complied with our position.

[00:20:53] Speaker 02:
They actually said that there's no need to put in those limitations, because they thought that it was encompassed in theirs.

[00:21:00] Speaker 02:
And that's why they end up reasoning with us after the institution decision.

[00:21:03] Speaker 03:
But the argument is they're wrong about that.

[00:21:05] Speaker 03:
that the original construction governs here and is inconsistent with your position?

[00:21:11] Speaker 02:
I don't see how it's inconsistent with our position based on the reasoning of the board.

[00:21:14] Speaker 02:
Because the reasoning of the board when they went through their construction said that it has a source of addresses.

[00:21:20] Speaker 02:
If you have a source of addresses, that means you have a bank of addresses that are going to be applied.

[00:21:25] Speaker 02:
And that's going to be dynamically assigned as soon as it comes through the firewall.

[00:21:30] Speaker 02:
And if you're reading, when you say DHCP or other source of addresses,

[00:21:35] Speaker 02:
That, to want to scale in the art, says that I'm looking at GHCP, which is a specific protocol that has a bank of addresses or another source of addresses.

[00:21:44] Speaker 02:
You could have another source of addresses that's going to be applied.

[00:21:47] Speaker 02:
But it can't be static.

[00:21:48] Speaker 02:
It can't be a one-to-one.

[00:21:50] Speaker 03:
Why?

[00:21:50] Speaker 02:
Because that's where the word dynamic comes in.

[00:21:52] Speaker 02:
That's the difference between a static network address translation and a dynamic.

[00:21:56] Speaker 03:
Dynamic means when it's needed.

[00:21:59] Speaker 03:
It doesn't mean that you have to use DCHP.

[00:22:02] Speaker 03:
In fact, the board specifically rejected that.

[00:22:05] Speaker 02:
But Your Honor, if you, when and as needed, doesn't mean that you have that address already existing that's mapped to an address behind the firewall.

[00:22:17] Speaker 02:
You have to use an address when and as needed.

[00:22:20] Speaker 02:
It's not going to be known before.

[00:22:23] Speaker 02:
And that's exactly why I pointed to the broad definition of static.

[00:22:27] Speaker 00:
I think we're just coming back to the same thing.

[00:22:30] Speaker 00:
I mean, the way that I tried to ask you the question is that

[00:22:34] Speaker 00:
dynamic when it means when and as needed, which you agreed to, is only about the time at which the swap is made.

[00:22:45] Speaker 00:
It is nothing about how many, about the variability of what you swap in for the private addresses.

[00:22:57] Speaker 00:
And you keep switching back and forth, as I think the board did.

[00:23:01] Speaker 02:
Well, I'm not trying to switch back and forth, John.

[00:23:02] Speaker 02:
What I'm trying to say is when you say when and as needed, that means you're applying an address when and as needed, right?

[00:23:09] Speaker 00:
And as far as the words when and as needed mean, I don't see why you can't have a single

[00:23:19] Speaker 00:
public address that you swap in on the origination address in the header of every single outgoing message.

[00:23:27] Speaker 02:
OK, because it's not done when and as needed.

[00:23:29] Speaker 02:
You're not, you're not.

[00:23:30] Speaker 00:
Only when the message is leaving.

[00:23:33] Speaker 02:
It's predetermined.

[00:23:34] Speaker 01:
That address is predetermined.

[00:23:36] Speaker 01:
But the application and the use of the address is done on the fly when and as needed.

[00:23:42] Speaker 02:
The application or, I'm sorry, Your Honor?

[00:23:44] Speaker 01:
Yeah, you've used the phrase application, use,

[00:23:48] Speaker 01:
Those things are happening when and as needed, even if we all know ahead of time what the single address, public address, is going to be.

[00:23:55] Speaker 01:
And isn't that all that the claim limitation requires?

[00:23:59] Speaker 02:
No.

[00:23:59] Speaker 02:
The claim limitation, then there's no difference between static and dynamic.

[00:24:05] Speaker 02:
If you have static network address translation, and we all read here that this is just talking about dynamic network address translation.

[00:24:11] Speaker 00:
Except that the word dynamic in general can have either of these two different meanings.

[00:24:16] Speaker 00:
It can mean changing the way the ISPs dynamically assign us IP addresses.

[00:24:25] Speaker 00:
In the old days, we all had one, but you can't do that anymore.

[00:24:30] Speaker 00:
And they can be different, or it could mean the time at which

[00:24:34] Speaker 00:
Something happens.

[00:24:36] Speaker 02:
Well, Your Honor, respectfully, it's the first one.

[00:24:40] Speaker 02:
Because you're referring to DHCP, dynamically assigning those addresses.

[00:24:45] Speaker 02:
That's what DHCP stands for.

[00:24:48] Speaker 03:
Except you don't need DCHP.

[00:24:51] Speaker 03:
And the board specifically says that dynamically modifies isolating, not address protocol.

[00:24:59] Speaker 02:
Correct.

[00:25:00] Speaker 02:
But your honor, if you read it in context, you have DHCP or other source of addresses.

[00:25:06] Speaker 02:
And then you have to do this.

[00:25:07] Speaker 03:
It doesn't say other similar source of addresses.

[00:25:12] Speaker 02:
No, it says another source of addresses.

[00:25:14] Speaker 02:
It has to be a bank of addresses that you can choose from.

[00:25:16] Speaker 03:
So why is it a static source and other source of addresses?

[00:25:19] Speaker 02:
Because there's only one address there.

[00:25:21] Speaker 03:
No, there's several in the one-on-one mapping.

[00:25:25] Speaker 02:
No, there's only one in the one-on-one mapping.

[00:25:28] Speaker 01:
I thought we went over this and you said you could end up with two different public addresses in the one-to-one embodiment of SICDAR.

[00:25:36] Speaker 02:
But you're only going to have one for any application that comes through, so it's still static.

[00:25:41] Speaker 02:
I mean, that's the difference between the static and the dynamic.

[00:25:45] Speaker 02:
I mean, in any case, Your Honor,

[00:25:48] Speaker 02:
This turns on the fact that they didn't have evidence in SICDAR to point to the source of addresses.

[00:25:55] Speaker 01:
Right, so why is that even relevant?

[00:25:58] Speaker 01:
Where does the claim construction require them to identify what that other source of addresses is?

[00:26:03] Speaker 02:
Because that's what the claim says or other source of addresses and their expert failed to do so.

[00:26:08] Speaker 01:
The claim says there is one, addresses are there,

[00:26:12] Speaker 01:
But it's not DHCP, so there must be some other source addresses.

[00:26:16] Speaker 01:
Why is that not sufficient?

[00:26:17] Speaker 02:
Because the board specifically said that another source of addresses can't be a static assignment of an address.

[00:26:24] Speaker 02:
It can't be the firewall's address.

[00:26:27] Speaker 02:
That's static.

[00:26:28] Speaker 02:
That's a factual finding by the board saying that this is a static embodiment.

[00:26:33] Speaker 03:
The sector does not just disclose a single firewall address.

[00:26:38] Speaker 03:
Well, you agreed to that earlier.

[00:26:41] Speaker 03:
You agreed to it and then you keep not agreeing to it.

[00:26:44] Speaker 02:
Well, because, Your Honor, that's still a static.

[00:26:46] Speaker 02:
And by the way, that wasn't below.

[00:26:49] Speaker 02:
They argued that for a separate limitation, for a separate argument.

[00:26:53] Speaker 02:
that had no bearing.

[00:26:54] Speaker 02:
That's not even in the record in terms of meeting these limitations.

[00:26:58] Speaker 01:
It seems to me, though, you're maybe implicitly agreeing to their implicit construction argument.

[00:27:02] Speaker 01:
The construction expressly does not require that the other source of addresses be a dynamic source of addresses.

[00:27:10] Speaker 01:
So are you agreeing that the board at least narrowed its own construction to say it's an other dynamic source of addresses?

[00:27:18] Speaker 02:
I don't think that the board narrowed it.

[00:27:22] Speaker 02:
And I think that the board specifically found that there's no source of evidence.

[00:27:26] Speaker 02:
But by the way, there's a second round, which is the win on the fly, which the board said that the petitioner had not met.

[00:27:51] Speaker 04:
Your Honors, I would like to address just one factual point about the record.

[00:27:57] Speaker 04:
Cupps Council said that Trend Micro's expert, Dr. Jacobson, did not identify a source of addresses in SICDAR, setting aside the fact that the board expressed construction did not require identification of the particular source.

[00:28:16] Speaker 04:
Dr. Jacobson nonetheless did identify a source of addresses in SICDAR, and that is the SPU.

[00:28:24] Speaker 04:
We don't even need his expert testimony for that.

[00:28:26] Speaker 04:
Appendix page 838, SICDAR specifically says that the SPU 200 in operation 1104 generates the public IP address, and we see in

[00:28:42] Speaker 04:
Figure 20, which that passage is describing at appendix page 935, that again, it says that the SPU generates the public IP address.

[00:28:52] Speaker 04:
Therefore, even if identification of a source were required, Dr. Jacobson and SIGDAR itself identifies the SPU as a source of the public IP address or public IP addresses.

[00:29:06] Speaker 04:
Unless your auditors have any further questions, Trend Micro asks the court to vacate the board's decision and remand for completion of the obvious analysis.

[00:29:17] Speaker 01:
Is the SPU that in SICDAR, is it a dynamic or a static source of addresses?

[00:29:23] Speaker 04:
Your Honor, it doesn't say one way or the other this alternative one-to-one mapping embodiment.

[00:29:32] Speaker 04:
Cupps Council said that that is an embodiment that shows static mapping, but SICDAR doesn't say that.

[00:29:40] Speaker 04:
It says it's a one-to-one mapping where under the express construction Would it satisfy that construction if it's static or if it's dynamic does it matter no your honor, it doesn't matter whether the address allocation is static or dynamic is irrelevant to the construction and the board itself said so at appendix page 22 when the board said dynamically modifies isolating a

[00:30:08] Speaker 04:
not address protocol, which term does not appear in the claims.

[00:30:12] Speaker 04:
And patent owner's construction fails because it would rewrite the claims and specification

[00:30:18] Speaker 04:
to substitute use of a dynamic address protocol for dynamically isolating.

[00:30:23] Speaker 04:
So regardless of whether the addresses are allocated statically or dynamically or in any other conceivable fashion is not relevant.

[00:30:33] Speaker 04:
Only the isolating needs to be dynamic.

[00:30:37] Speaker 04:
And the isolation, as the board said, occurs when you're translating the IP addresses.

[00:30:43] Speaker 04:
So it's the swapping out.

[00:30:45] Speaker 04:
of the private IP address for the public IP address that needs to happen on the fly, not the selection.

[00:30:53] Speaker 03:
Thank you, Your Honors.