[00:00:00] Speaker 04:
The next case for argument is 22-1291, Botmay versus Sony Interactive.

[00:00:07] Speaker 04:
Just for the record, as we all know and agree, the PTO has dropped out of this argument in light of the issue.

[00:00:16] Speaker 04:
Mr. Franco, whenever you're ready.

[00:00:19] Speaker 02:
Good morning, Your Honors.

[00:00:21] Speaker 02:
May it please the Court.

[00:00:22] Speaker 02:
The final written decision should be reversed because it was based on an erroneous claim construction.

[00:00:28] Speaker 02:
The board found.

[00:00:30] Speaker 02:
contrary to the very purpose of the 540 patent, that unauthenticated, untrusted data could be copied into the memory of the motherboard.

[00:00:41] Speaker 02:
The entire point of the 540 patent and its distinction over the prior art was to first authenticate the data that came on this untrusted removable source,

[00:00:54] Speaker 02:
And only after the authentication process is completed can that formerly untrusted data be copied into the RAM memory of the motherboard, which is inherently trusted.

[00:01:08] Speaker 04:
OK.

[00:01:09] Speaker 04:
I hope this question makes sense, because I'm not clear.

[00:01:12] Speaker 04:
I'm understanding everything that's going on here.

[00:01:15] Speaker 04:
But it seems to me that everyone agrees that the GAY program can't be written to the motherboard before authentication, right?

[00:01:25] Speaker 04:
Is that a correct statement?

[00:01:26] Speaker 04:
Is that what the construction was?

[00:01:29] Speaker 02:
That is correct.

[00:01:31] Speaker 02:
OK.

[00:01:31] Speaker 04:
So the board found that under that view, whatever Johnson and Moraw, the pieces of prior art, wrote to the motherboard before authentication, it wasn't a game board, a game program.

[00:01:46] Speaker 04:
That's the board found out, right?

[00:01:48] Speaker 04:
Just follow me step by step.

[00:01:50] Speaker 02:
OK.

[00:01:51] Speaker 02:
I don't agree, but I understand what you've said.

[00:01:54] Speaker 02:
The board's construction was that the entirety of the game program cannot be copied into memory until authentication is complete.

[00:02:06] Speaker 02:
In particular, the board's claim construction was that claim one does not broadly preclude data or files other than the game program

[00:02:17] Speaker 02:
from being written to RAM to facilitate the authentication of the game program.

[00:02:21] Speaker 02:
And that's appendix 40.

[00:02:24] Speaker 02:
The critical point, the board did not agree that no portion of the gaming information can be read into RAM from the mass storage device prior to authentication.

[00:02:38] Speaker 04:
So where in your briefing did you demonstrate that what Johnson and Morrow write before authentication is really a portion of the game program?

[00:02:46] Speaker 04:
and that no reasonable fact-finder could prove otherwise was the argument made.

[00:02:52] Speaker 02:
Well, we did not advance a substantial evidence argument on that point.

[00:02:56] Speaker 01:
But what we did explain... You didn't argue claim construction at all, correct?

[00:03:02] Speaker 02:
No, below we did argue claim construction.

[00:03:04] Speaker 02:
I mean, this was from the final written decision.

[00:03:07] Speaker 02:
This was the board's characterization of the argument in the issue.

[00:03:12] Speaker 02:
Again, this is appendix 40.

[00:03:14] Speaker 04:
I'm sorry, appendix 40?

[00:03:15] Speaker 02:
Yes, 40.

[00:03:17] Speaker 02:
Patent owner seeks to read into claim one a requirement that nothing related to

[00:03:25] Speaker 02:
or any portion of the gaming information be read into RAM from the mass storage device of Johnson prior to authenticating the gaming program.

[00:03:36] Speaker 03:
So, Council, just to clarify, you argued claim construction on other terms, but not this term in particular.

[00:03:41] Speaker 03:
Is that right?

[00:03:43] Speaker 02:
The two terms that were argued were read and write, and they reflect this claim construction issue.

[00:03:50] Speaker 02:
And the IPCR proceeding, there's a bit of a moving target as far as petitioners' position.

[00:03:57] Speaker 02:
Petitioners seemed to be saying originally that the gaming program could be copied into information, and then they backtracked from that.

[00:04:05] Speaker 02:
So during oral argument, both sides clarified the claim construction issues.

[00:04:10] Speaker 02:
There was a concession from Sony's counsel during their presentation.

[00:04:16] Speaker 02:
But the board clearly understood the salient claim construction dispute, which from the passage I just read,

[00:04:23] Speaker 02:
You know, patent owner seeks to read and to claim one requirement.

[00:04:26] Speaker 02:
That's clearly a claim construction issue, not a factual issue.

[00:04:31] Speaker 02:
And that requirement was that no portion of the gaming information could be read into RAM prior to the completion of authentication.

[00:04:39] Speaker 02:
Now, there was actually no dispute in the case.

[00:04:42] Speaker 02:
Even Sony's expert agreed.

[00:04:46] Speaker 02:
that the way that Johnson authenticates the gaming data is by copying it in chunks into RAM and then generating a checksum.

[00:04:56] Speaker 02:
I'll give you the site for his concession on that point.

[00:05:01] Speaker 02:
That was Appendix 1798.

[00:05:03] Speaker 02:
This is during his deposition at 45.2 through 46.11.

[00:05:09] Speaker 02:
In his testimony,

[00:05:12] Speaker 02:
was that a person of ordinary, he didn't use the word person of ordinary skill in the art, but this is what he said, that a person of ordinary skill in the art would understand that the way this checksum is generated is by taking chunks of the gaming data, loading it into memory, and then running a hash on it and get a number.

[00:05:29] Speaker 02:
And then you compare that to the authentication number that's also found on the device.

[00:05:34] Speaker 02:
That's the old

[00:05:36] Speaker 03:
So counsel, do you agree that the board distinguished writing the game program into memory from writing game data more generally?

[00:05:43] Speaker 03:
Do you agree with that statement?

[00:05:44] Speaker 02:
I do.

[00:05:45] Speaker 02:
And that was the error.

[00:05:48] Speaker 02:
Yes, I agree.

[00:05:49] Speaker 02:
And that was part of the error of the board's claim construction.

[00:05:52] Speaker 02:
Because the patent itself uses the term gaming information.

[00:05:57] Speaker 02:
And it's referring broadly not just to the game that you would play, but the data associated with it.

[00:06:04] Speaker 02:
but the board also found on Appendix 40 that portions of the gaming program could be copied into memory and Sony's expert conceded

[00:06:15] Speaker 02:
that that, in fact, is how Johnson, and for that matter, Morrow, authenticate the gaming programs.

[00:06:23] Speaker 02:
And the problem with that approach is the very problem the 540 patent was trying to avoid, which is once you've copied the suspicious, untrusted code into your RAM memory, the damage can be done.

[00:06:37] Speaker 02:
One of the primary applications of this technology was in casino games, like slot machines.

[00:06:43] Speaker 02:
And the game designers wanted the flexibility that you could

[00:06:48] Speaker 02:
Just put a chip into the game and change it.

[00:06:51] Speaker 02:
So it's a new look.

[00:06:52] Speaker 02:
It's exciting.

[00:06:53] Speaker 02:
But the concern is that a malicious actor might remove the chip, make some modifications to the code, slip it in, and then start stealing money from the casino.

[00:07:03] Speaker 02:
So it's a more paranoid paradigm of security where nothing goes into the motherboard memory.

[00:07:11] Speaker 02:
This is said throughout the 540 patent until the authentication process is complete.

[00:07:18] Speaker 02:
Respectfully, the board construed the claim incorrectly to allow both associated data, which means you're still reading data from the board, the untrusted board, into RAM memory that hasn't been verified.

[00:07:31] Speaker 02:
And the damage could be done at that point.

[00:07:33] Speaker 02:
That's number one.

[00:07:35] Speaker 02:
And number two, that the process is not completed and gaming information itself is being brought in and being processed with this check zone process to authenticate it.

[00:07:48] Speaker 03:
Now, the claims refer to game program, right?

[00:07:50] Speaker 03:
Not gaming information.

[00:07:51] Speaker 02:
Correct.

[00:07:53] Speaker 02:
So the claims talk about a specific sequence and a causal relationship, which is that the gaming program is authenticated, and then the gaming program is copied into memory.

[00:08:08] Speaker 02:
So to anticipate that claim, something has to be first authenticated and then copied into memory.

[00:08:17] Speaker 02:
And there's no disclosure in Johnson or in Morrow of first completing the authentication process for the game and only then copying it into memory.

[00:08:30] Speaker 02:
So that is the error of the board's claim construction.

[00:08:34] Speaker 04:
Well, why isn't that a substantial evidence question, because didn't the board

[00:08:40] Speaker 04:
conclude that Johnson and Moreau write before authentication is really a portion of the game program, what they write before authentication?

[00:08:50] Speaker 02:
No, that was not the board's conclusion.

[00:08:53] Speaker 02:
I mean, the board's conclusion was that the fact that data was being copied into RAM memory was not

[00:09:01] Speaker 02:
relevant because it wasn't the entire gaming program.

[00:09:05] Speaker 02:
And that is not a question of substantial evidence.

[00:09:08] Speaker 02:
It's the question of the meaning of the claims.

[00:09:13] Speaker 02:
I apologize for repeating myself, but the key passage in the final written decision is on Appendix 40, where the board says, we've seen the arguments that patent owners making, but we disagree because

[00:09:28] Speaker 02:
They seek to read into claim one a requirement, that's a question of claim construction, that nothing related to or any portion of the gaming information be read into RIM.

[00:09:40] Speaker 02:
That's where they got it wrong.

[00:09:42] Speaker 03:
I guess what I'm struggling with here is you never asked to construe a game program, right?

[00:09:48] Speaker 03:
Like, just so I make sure I have my facts right.

[00:09:51] Speaker 03:
Is that true?

[00:09:52] Speaker 02:
It was not a section of the brief where we said, this term needs to be construed.

[00:09:57] Speaker 03:
And there were other terms you said needed to be construed, right?

[00:10:01] Speaker 02:
That is correct.

[00:10:03] Speaker 02:
But throughout the proceeding, and in particular at the trial itself, when the parties' positions on this issue were clarified, we made clear our position, Sony made clear its position, and the board agreed with Sony, to Arshad Grin, that the claims, you know, botmate's view is that the claims preclude writing even a portion of the gaming program into memory, which, it's undisputed, happens.

[00:10:32] Speaker 02:
And that related data from the untrusted media source can't be copied into memory.

[00:10:40] Speaker 02:
Sony disagreed, and the board agreed with Sony, as it makes crystal clear in the final written decision.

[00:10:46] Speaker 02:
And that was a consequential, and in this case, dispositive claim construction error

[00:10:52] Speaker 02:
that the board made.

[00:10:53] Speaker 04:
Can you just clarify something for me?

[00:10:56] Speaker 04:
Blue at, I think, 17, you say, the board adopted a contrary construction, finding the claim line does not provide the complete data for other files other than the game program for being written around to facilitate the authentication of the game program.

[00:11:15] Speaker 04:
So that's your view, the or files other than the game program?

[00:11:19] Speaker 04:
Is that your construction?

[00:11:21] Speaker 02:
I'm sorry, Your Honor.

[00:11:23] Speaker 04:
Is that your construction?

[00:11:25] Speaker 02:
Our construction is, as the board put it in rejecting it, that nothing related to and no portion of the gaming information can be read into RAM.

[00:11:37] Speaker 04:
Well, what is or other files other than the game program?

[00:11:40] Speaker 04:
Do you think the terms should be construed to preclude data other than the game program from being written to RAM?

[00:11:50] Speaker 04:
Was that your construction?

[00:11:52] Speaker 02:
That was our construction.

[00:11:54] Speaker 02:
So there's two parts.

[00:11:56] Speaker 02:
A simple way of putting it is no data can be copied from the untrusted source into the motherboard's RAM until the authentication process is complete.

[00:12:07] Speaker 02:
And that includes not copying in portions of the gaming program, and it includes not copying in other data

[00:12:14] Speaker 02:
from the untrusted source.

[00:12:17] Speaker 04:
Files other than the game program.

[00:12:18] Speaker 02:
Correct.

[00:12:19] Speaker 04:
So that was your construction, which you say the board rejected.

[00:12:21] Speaker 04:
And you want us to adopt your construction in order to resolve it.

[00:12:27] Speaker 01:
Correct.

[00:12:28] Speaker 01:
Wasn't this issue treated or the subject of, let's call it a battle of the experts?

[00:12:36] Speaker 01:
And on this issue, you credited the expert testimony for that.

[00:12:45] Speaker 02:
There were many disagreements between the experts.

[00:12:49] Speaker 02:
But the experts for both sides agreed that at least a portion of the gaming data and certainly other data from the untrusted source.

[00:12:59] Speaker 01:
I guess the point is that that part of the final written decision was the board based it on the credibility of Sony's expert.

[00:13:10] Speaker 01:
And we can't review that credibility determination.

[00:13:15] Speaker 02:
Well, before the board even got to the factual opinions of the experts, the board made an erroneous claim construction.

[00:13:25] Speaker 02:
Had the board applied the correct claim construction, which is that nothing can be taken from the untrusted source and put into RAM, then in that case, there would have been no dispute.

[00:13:40] Speaker 01:
On this point, you argue for particular claim construction?

[00:13:43] Speaker 02:
Correct.

[00:13:44] Speaker 02:
We argued throughout the proceeding, including during the trial, that nothing can be copied from the untrusted source into memory.

[00:13:55] Speaker 02:
Again, in appendix 40, the board made very clear its understanding of botmate's proposed construction.

[00:14:03] Speaker 02:
It rejected botmate's proposed construction.

[00:14:07] Speaker 02:
It said that that's not a requirement of the claim.

[00:14:09] Speaker 02:
It's not a factual finding.

[00:14:10] Speaker 02:
It's not an expert issue.

[00:14:11] Speaker 02:
It's a claim construction finding.

[00:14:13] Speaker 04:
And then in- But didn't the board find that whatever Johnson and Morrow wrote to the mother board before Roth certification, it wasn't the game

[00:14:25] Speaker 02:
The only finding from the board was am I right I mean look at a 37 The finding of the board while I pull that is that the entirety of the gaming program was not loaded into them That's not the same thing as finding that no portion of it was read in and in response to the concession of Sony's expert and

[00:14:49] Speaker 02:
that portions of the data are read into RAM memory before authentication, the board's response was, it doesn't matter, because there's no requirement precluding that from being the case.

[00:15:00] Speaker 02:
But that's the error in the board's claim construction.

[00:15:04] Speaker 02:
I'm sorry, Your Honor, you said 830.

[00:15:13] Speaker 04:
that Johnson and Marrrow wrote to the motherboard before authentication.

[00:15:18] Speaker 04:
Whatever it wrote, it wasn't the game program.

[00:15:21] Speaker 02:
No, I respectfully disagree.

[00:15:24] Speaker 02:
All that the board says, the full program as a whole is not loaded into RAM.

[00:15:33] Speaker 02:
until the authentication process is complete.

[00:15:35] Speaker 02:
But it's not even that they made a finding the other way.

[00:15:39] Speaker 02:
There's no dispute between the parties that portions of the gaming program are loaded into RAM so that the verification can take place.

[00:15:47] Speaker 03:
Do you want to briefly address the two CPU claims issue?

[00:15:53] Speaker 03:
Briefly.

[00:15:54] Speaker 02:
Sure.

[00:15:54] Speaker 02:
And should you agree with us and reverse on the issue of claim construction, that would resolve the two CPU claims as well.

[00:16:02] Speaker 02:
All of the challenge claims, including those claims, include the authentication first requirement.

[00:16:07] Speaker 02:
The point on the two CPU claim issue is that there was no prima facie case of obviousness, because there's no reference that had the idea of having two separate CPUs for running two separate

[00:16:20] Speaker 02:
authentication programs.

[00:16:23] Speaker 02:
For those claims, that's the key inventive concept.

[00:16:27] Speaker 02:
And it was just purely being filled in with hindsight by saying, there's one reference that said... What about the Martinek reference?

[00:16:39] Speaker 02:
The Martin Neck reference talks about using an external source for authentication.

[00:16:45] Speaker 02:
It doesn't talk about using two CPUs for authentication, and it doesn't talk about using two authentication programs, a preliminary authentication and then the full authentication.

[00:16:56] Speaker 02:
So it's not even really close to what these claims are talking about.

[00:17:02] Speaker 02:
The two CPU claims have this super paranoid security system, which is we have this, it's like a security guard before you can even come into the building that's gonna first validate the authentication program.

[00:17:16] Speaker 02:
And if that authentication program is validated, then it's allowed to come in and access the main CPU on the motherboard for the authentication process.

[00:17:25] Speaker 02:
There's nothing with that concept in any of the cited prior art references.

[00:17:30] Speaker 04:
Well, over your rebuttal.

[00:17:33] Speaker 04:
So let me hear from the other side, and we'll restore a little time.

[00:17:36] Speaker 02:
Thank you, Your Honor.

[00:17:37] Speaker 00:
Good morning, and may it please the court.

[00:17:39] Speaker 00:
Appellant's claim construction cannot be correct.

[00:17:42] Speaker 00:
And here's why.

[00:17:43] Speaker 00:
If you look to claim one, claim one lays out a couple different components.

[00:17:46] Speaker 00:
It lays out a board and a motherboard.

[00:17:48] Speaker 00:
Both the board and the motherboard have a memory.

[00:17:50] Speaker 00:
And then it lays out two different programs.

[00:17:52] Speaker 00:
There's an authentication program, and then there's also a game program.

[00:17:55] Speaker 00:
claim one claim one then goes on to articulate several steps for how this system is going to operate in those steps the authentication program is read over from the board to the motherboard then of course that authentication program is used to perform the authentication process and then only after that authentication process is

[00:18:16] Speaker 00:
successful is the game program moved over.

[00:18:19] Speaker 00:
So if Helen's construction, they would have this court hold that nothing related to or any portion of the gaming information be read into RAM prior to authentication.

[00:18:29] Speaker 04:
And what is your alternative construction that you understand that the board adopted?

[00:18:32] Speaker 00:
yes the alternative construction is this claim one does not broadly preclude data or files other than the game program from being written to ram to facilitate the authentication so the game program cannot be moved prior to authentication so the deadline the daylight between you and the other side is the game program versus his

[00:18:52] Speaker 04:
anything related to the game program?

[00:18:54] Speaker 00:
Exactly, Your Honor.

[00:18:55] Speaker 00:
And here's the linchpin of that.

[00:18:56] Speaker 00:
In claim one, Your Honor, the authentication program is defined as an authentication program, quote, for authenticating the game program.

[00:19:05] Speaker 00:
So as laid out in claim one, it is related to the game program.

[00:19:08] Speaker 00:
The authentication program is for authenticating the game program.

[00:19:12] Speaker 00:
And so it cannot be true that nothing related to the game program can be communicated over prior to authentication.

[00:19:20] Speaker 00:
The authentication program must be communicated over from the board to the motherboard prior to authentication.

[00:19:26] Speaker 04:
Well, and what about, look at 40, which your friend was pointing us to, in terms of where the board characterized the Patnone.

[00:19:33] Speaker 04:
Yes, Your Honor.

[00:19:37] Speaker 04:
Which is nothing related to or any portion of the gaming information are both of those pieces?

[00:19:44] Speaker 04:
Does the board disagree with both of those pieces?

[00:19:47] Speaker 04:
Nothing related to.

[00:19:48] Speaker 00:
Nothing related to, Your Honor.

[00:19:50] Speaker 04:
Is gone, in their view.

[00:19:51] Speaker 00:
Yes.

[00:19:51] Speaker 04:
But any portion of the gaming information, what is that?

[00:19:54] Speaker 04:
What is that?

[00:19:56] Speaker 00:
That's not especially clear in that portion of the record, Your Honor.

[00:19:58] Speaker 00:
But the board does go on to say right after that, in that final written decision, that their construction is that claim one does not broadly preclude data or files other than the game program.

[00:20:08] Speaker 00:
So the focus, Your Honor, is on the game program.

[00:20:10] Speaker 00:
The board never holds that portions of the game program can be moved over prior to authentication.

[00:20:16] Speaker 04:
In fact... And what is nothing related to?

[00:20:18] Speaker 04:
What is related to me?

[00:20:19] Speaker 04:
What is the scope of related to?

[00:20:21] Speaker 00:
That's our concern, Your Honor.

[00:20:22] Speaker 00:
That's the appellant's position is that nothing related to can be communicated prior to authentication.

[00:20:27] Speaker 00:
And that's our concern is the authentication program is communicated over prior to authentication and it is related to the game program as defined in claim one.

[00:20:37] Speaker 04:
And then just walking through the steps of where the board was.

[00:20:40] Speaker 04:
And then they looked at the prior art, and they said the prior art does what, which makes it relevant.

[00:20:47] Speaker 00:
Yes, Your Honor.

[00:20:47] Speaker 00:
So the board concluded, starting with the Johnson analysis, the board concluded at appendix 36 and 37, Johnson writes the game program in the system RAM only after verification of the files on the mass storage device is successfully completed.

[00:21:05] Speaker 00:
So the game program is communicated only after the authentication process is complete.

[00:21:11] Speaker 00:
And that's just like claim one.

[00:21:12] Speaker 00:
And there's substantial evidence in the record that supports that, Your Honor.

[00:21:15] Speaker 01:
So in Johnson... Am I correct that Dr. Wolf testified to this on this issue?

[00:21:20] Speaker 00:
Yes, Your Honor, that's correct.

[00:21:21] Speaker 00:
And the board credited Dr. Wolf's testimony.

[00:21:23] Speaker 00:
There was competing expert testimony on this particular issue, on the Johnson analysis, Your Honor.

[00:21:28] Speaker 00:
The board weighed both experts and found that Dr. Wolf's testimony should be credited because it was consistent with the claims, consistent with the intrinsic record.

[00:21:37] Speaker 01:
I call that a battle of experts.

[00:21:39] Speaker 01:
Is that a correct way of looking at that, you think?

[00:21:42] Speaker 00:
Yes, that's how I would understand it too, Your Honor.

[00:21:44] Speaker 00:
I think that's right.

[00:21:46] Speaker 04:
Maybe this is neither here nor there in terms of the result, but is this more in your view of a substantial evidence question, or is it not, based on the discussion we've had today, is it not really a claim construction question?

[00:22:01] Speaker 00:
I don't think it really ought to be a claim construction question, your honor.

[00:22:04] Speaker 04:
Why not?

[00:22:05] Speaker 04:
You've demonstrated quite clearly, and maybe even persuasively, that there were two alternative claim constructions in play here, and the board adopted yours and not this very broad related to anything in the game program.

[00:22:19] Speaker 00:
Yes, thank you, Your Honor.

[00:22:20] Speaker 00:
The reason is that they didn't appeal the construction of the term read.

[00:22:23] Speaker 00:
So had they just appealed the construction of the term read, I would agree that this is a claim construction issue that was presented below clearly, consistently had they appealed the term read.

[00:22:32] Speaker 00:
They didn't do that.

[00:22:33] Speaker 00:
And for some reason instead, they switched on appeal to this court and attached that reasoning to this new authentication first limitation.

[00:22:42] Speaker 00:
And that was not presented below.

[00:22:44] Speaker 00:
The board never addressed the claim construction for the authentication first limitation.

[00:22:48] Speaker 00:
So that's why I responded that it should be a substantial evidence case, Your Honor.

[00:22:52] Speaker 00:
Turning to that substantial evidence, in Johnson, at column three, Johnson directly addresses this.

[00:22:58] Speaker 03:
So Johnson says, if in order for you to win, do we need to find forfeiture of any of the claim construction issues?

[00:23:04] Speaker 00:
No, Your Honor.

[00:23:06] Speaker 00:
No.

[00:23:07] Speaker 00:
It'd be sufficient to find that the board's claim construction is correct and that appellant's construction is incorrect for the reasons that I laid out.

[00:23:13] Speaker 00:
The appellant's construction is inconsistent with claim one.

[00:23:16] Speaker 01:
If we agreed with you on this issue, is that dispositive of the case?

[00:23:20] Speaker 00:
Yes, I think it ought to be, Your Honor.

[00:23:21] Speaker 00:
There's this secondary issue involving the dependent claims, 2, 3, and 5, and 6, and I'm happy to address those, Your Honor.

[00:23:28] Speaker 00:
But as for independent claims 1 and 4, yes, if you agree on claim construction, I think that is dispositive.

[00:23:34] Speaker 04:
But I didn't understand you as a judge right now.

[00:23:36] Speaker 04:
So we do not have to reach the issues regarding the dependent claims?

[00:23:40] Speaker 00:
No, I'm sorry.

[00:23:40] Speaker 00:
You do.

[00:23:41] Speaker 00:
There's two issues on appeal.

[00:23:43] Speaker 00:
One is the independent claims one and four.

[00:23:45] Speaker 00:
I think the claim construction issue would resolve that.

[00:23:47] Speaker 00:
The second issue is they challenge the sufficiency of the evidence as to the dependent claims.

[00:23:53] Speaker 00:
And so I can walk through that.

[00:23:58] Speaker 00:
So claims two and three and five and six involve basically a two-step process.

[00:24:07] Speaker 00:
There's two CPUs and there's a two-step process.

[00:24:09] Speaker 00:
There's a preliminary authentication program and what that does is then that authenticates the authentication program and then there's a second CPU that

[00:24:18] Speaker 00:
runs that authentication program that authenticates the data.

[00:24:21] Speaker 00:
And that's how this works.

[00:24:22] Speaker 00:
We relied mainly on two prior art references for this concept of two CPUs and two authentication programs.

[00:24:27] Speaker 00:
There's a reference called Diamond.

[00:24:28] Speaker 00:
In figure two in Diamond it's a flow chart and it lays out exactly that there's a preliminary authentication program and then there's a secondary authentication program.

[00:24:36] Speaker 00:
And then we also relied on a prior art reference called Martinek.

[00:24:40] Speaker 00:
And Martinek teaches two boards.

[00:24:42] Speaker 00:
So there's a computer.

[00:24:43] Speaker 00:
There's a main computer.

[00:24:44] Speaker 00:
And then there's a secondary board.

[00:24:45] Speaker 00:
And that secondary board also has a CTU.

[00:24:47] Speaker 00:
So you've got a computer with a processor.

[00:24:49] Speaker 00:
You've got a secondary board also with a processor.

[00:24:52] Speaker 00:
And here's the key piece of this is Martinek says the purpose of this board is to function as a gate.

[00:24:58] Speaker 00:
Function as a gate to prevent unauthenticated information from being communicated from this first board onto the main computer.

[00:25:05] Speaker 00:
And the board relied on that and said there's express motivation from Martin-Eck because of this discussion of a gate.

[00:25:12] Speaker 00:
There's express motivation to combine Martin-Eck with the preliminary authentication program endowment and to use those in combination with Johnson to apply to the dependent claims.

[00:25:22] Speaker 00:
And so what's really going on, Diamond has some details on the software, on the preliminary authentication program and the secondary authentication program.

[00:25:30] Speaker 00:
And then Martinet goes into specific detail about the hardware.

[00:25:33] Speaker 00:
But they're both accomplishing the same thing.

[00:25:35] Speaker 00:
They're acting as a gate to prevent information that's not authenticated from being communicated from a first board onto the main computer.

[00:25:43] Speaker 04:
Can I just, before your time runs out, can I just take you back to the first point?

[00:25:46] Speaker 04:
Of course, Your Honor.

[00:25:46] Speaker 04:
A first issue.

[00:25:47] Speaker 04:
And did the board find that portions of the GAIN program were copied over before in Johnson or in Laurel?

[00:25:55] Speaker 00:
No, Your Honor, the board did not.

[00:25:57] Speaker 04:
So even if the construction were GAIN program or portions of the GAIN program, the result would still be the same?

[00:26:04] Speaker 00:
That's correct, Your Honor.

[00:26:05] Speaker 00:
The board found that the GAIN program was not communicated over prior to authentication.

[00:26:09] Speaker 00:
That was the analysis that the board performed, and that was their conclusion based on the evidence below.

[00:26:15] Speaker 03:
I guess one question I'll ask you before you, it looks like you're gearing sit down, but at the end of time, would be how you're distinguishing potentially between GAIN information and GAIN program.

[00:26:25] Speaker 03:
I know that your opposing counsel put a lot of weight on that distinction.

[00:26:29] Speaker 00:
Yeah, so in the 540 patent, it uses those terms a couple different ways.

[00:26:33] Speaker 00:
In some places, it calls it gaming information, and in other places, it calls it a game program.

[00:26:37] Speaker 00:
I believe in one of the figures in the 540 patent, there's a box that has gaming information and game program together.

[00:26:43] Speaker 00:
But our position is that for purposes of these claims, game program is where the focus ought to be, and that's because of the claims for a side game program.

[00:26:51] Speaker 02:
The first point I'd like to make is that the board did rely on its construction that no portion of gaming data could its rejection of the proposed construction that no portion of gaming data can be copied into RAM in its final written decision and that's at appendix 41

[00:27:20] Speaker 02:
42 where it discusses and rejects botnets arguments.

[00:27:25] Speaker 02:
The second, council made an argument that botnets claim construction should be rejected because the authentication program is copied into memory prior to the conclusion of the authentication process.

[00:27:39] Speaker 02:
Now that's addressed by the two CPU points.

[00:27:42] Speaker 02:
You know that that's a special case.

[00:27:45] Speaker 02:
It's necessary to bootstrap the authentication software into memory and in recognition of the potential weakness in the security system there's this the dependent claims talk about that separate authentication of the authentication program and

[00:28:03] Speaker 02:
And once that's complete, which is done by a totally separate CPU that has read-only memory, where nothing is written in the memory at all.

[00:28:12] Speaker 02:
So that's just, first you authenticate the authentication program.

[00:28:16] Speaker 02:
And only then is it copied into RAM.

[00:28:19] Speaker 02:
And only then does the authentication of the other information on the gaming disk take place.

[00:28:26] Speaker 02:
And only after that is complete is that gaming data copied into the motherboard's RAM.

[00:28:32] Speaker 02:
loophole in the security process is addressed and in fact is the purpose of

[00:28:37] Speaker 02:
of the two CPU claims.

[00:28:39] Speaker 02:
And even if your honors were to partially reverse unclaimed construction and find that the gaming program itself can't be copied into memory, but perhaps other data from the untrusted source could be copied into memory, then at a minimum, a remand would be necessary to apply the correct claim construction.

[00:29:06] Speaker 02:
because it's clear from those pages identified in the final written decision that the board did not, you know, the board found it was okay both for gaming proportions of the gaming data to be copied into memory and other data from the untrusted disk to be copied into memory.

[00:29:26] Speaker 02:
And I would just end by pointing to figure one on appendix 78, which shows that the memory card, this is the untrusted source that can be plugged into the gaming machine, includes both game system program, which is element 30B, and game program, which is element 30A.

[00:29:49] Speaker 02:
And what's discussed throughout the specification is that both of those

[00:29:54] Speaker 02:
are authenticated before they can be copied into RAM.

[00:29:58] Speaker 02:
And the point of that is you can't trust any data on the memory card until the authentication process is complete.

[00:30:05] Speaker 02:
So there's no distinction there between the game program itself or the game system program or the other data on the untrusted memory card.

[00:30:16] Speaker 02:
Thank you, Your Honor.

[00:30:18] Speaker 04:
Thank you.

[00:30:18] Speaker 04:
Thank you.

[00:30:18] Speaker 04:
We thank both sides.

[00:30:19] Speaker 04:
The case is submitted.