[00:00:00] Speaker 02:
The first case for argument this morning is 22-1085 Genon Tech versus Google.

[00:00:08] Speaker 02:
Mr. Dalton, you never go there.

[00:00:10] Speaker 02:
Did I mispronounce your claimant's name?

[00:00:12] Speaker 02:
I'm Jenner.

[00:00:13] Speaker 02:
Jenner.

[00:00:15] Speaker 04:
Please proceed.

[00:00:17] Speaker 00:
May it please the court.

[00:00:18] Speaker 00:
In this case, the P tab stated that it was adopting our claimant's instruction that we proposed.

[00:00:27] Speaker 00:
What it used was something vastly different.

[00:00:32] Speaker 00:
It provided no explanation as to why it didn't adopt our plan construction or apply it.

[00:00:40] Speaker 00:
Did not address the with or without a condition element in the ITP limitation as well.

[00:00:52] Speaker 02:
Silence and not knowing why or how that just on that point Did you also put in a pair of medical about directly or indirectly?

[00:01:03] Speaker 00:
We did on appeal and that was for clarification.

[00:01:06] Speaker 02:
Okay, but that was not the claim construction that was except adopt what you're saying Correct.

[00:01:12] Speaker 00:
Yes, exactly.

[00:01:13] Speaker 00:
So what the p-tap did was require a direct

[00:01:18] Speaker 00:
linkage to keeping a connection active.

[00:01:23] Speaker 00:
They rejected the idea that it could be indirect by sending a retransmission packet that would elicit an acknowledgement packet that would return and then reset.

[00:01:36] Speaker 02:
But just to be clear, my point was that the construction, the interstate

[00:01:44] Speaker 00:
they said they adopted our construction but what the board did was was very different they said that they looked at the purpose of the packet that wasn't our construction and when we talk about purpose this is an apparatus claim

[00:02:04] Speaker 00:
In claim one, the node is receiving a message from another node with certain information that it then accesses, which is the idle time period.

[00:02:14] Speaker 03:
The ITP would... In your patent owner response, didn't you translate your proposed construction as being purpose directed, like an A408?

[00:02:26] Speaker 03:
Put differently, if any package is sent or received by the apparatus for the purpose of keeping the connection active,

[00:02:34] Speaker 03:
then that's outside scope of the claimed idle time period.

[00:02:38] Speaker 03:
So, I mean, it was your patented response that basically offered up

[00:02:44] Speaker 03:
Translation of whatever the construction was.

[00:02:47] Speaker 03:
I mean to me with or without condition that language is pretty abstract I'm not really sure what it's getting at if I just read it Sitting there alone, but here the put differently sentence in the path known a responsive a 408 really helped cement

[00:03:05] Speaker 03:
what you're talking about.

[00:03:06] Speaker 03:
It makes it much more tangible.

[00:03:08] Speaker 03:
And the way you described it was, it's about the purpose of the packet.

[00:03:14] Speaker 03:
What is that purpose of the packet?

[00:03:16] Speaker 03:
And when you send that retransmission packet, that idle time period clock still keeps running.

[00:03:23] Speaker 03:
It doesn't stop.

[00:03:25] Speaker 03:
So it's still on the path to timing out eventually.

[00:03:30] Speaker 00:
Yes, that's the corrective part.

[00:03:34] Speaker 00:
When you send the retransmission packet, what it's doing is try to elicit the exact same response as the original data packet that was sent.

[00:03:42] Speaker 00:
It's just following up, it's doing the same thing, and it's a connection.

[00:03:45] Speaker 00:
And the connections go both ways, and so it is sending

[00:03:49] Speaker 00:
a retransmission packet trying to make sure that the message gets there and also to elicit an act coming back to confirm that.

[00:03:58] Speaker 00:
Otherwise it's going to send another one.

[00:04:00] Speaker 05:
I'm confused.

[00:04:03] Speaker 05:
Judge Chen asked you a question and then you said it was correct in part.

[00:04:10] Speaker 00:
Yes.

[00:04:11] Speaker 05:
Was anything Judge Chen said incorrect?

[00:04:14] Speaker 00:
Well, the point I was going to make is that this is an apparatus claim.

[00:04:18] Speaker 00:
And this apparatus is... That's a yes or no.

[00:04:22] Speaker 00:
It was incorrect.

[00:04:23] Speaker 05:
Was anything Judge Chen said incorrect?

[00:04:26] Speaker 00:
I believe so.

[00:04:27] Speaker 00:
And I would... Yes.

[00:04:30] Speaker 03:
The way I reported out what was in your patent owner response of A408, that was correct, right?

[00:04:37] Speaker 03:
Yes, and I just want to, I think that the... Okay, and it's also correct that a retransmission packet, once it's sent out, that doesn't stop the idle time period clock from running.

[00:04:47] Speaker 00:
It doesn't stop the upward timeout.

[00:04:50] Speaker 00:
Yeah.

[00:04:51] Speaker 00:
From an Egger, and we don't agree that that is an idle time period.

[00:04:54] Speaker 00:
And this is, there's a fundamental difference.

[00:04:56] Speaker 00:
So in Egger, they're trying to have connections with Stan long periods of disconnection.

[00:05:02] Speaker 00:
The ITP, it's periods of inactivity, when no messages are being sent.

[00:05:07] Speaker 00:
So in Egert, it starts when you send a data segment.

[00:05:13] Speaker 00:
It won't start if there's nothing else sent.

[00:05:16] Speaker 00:
And the ITP, it's running and it's a period of inactivity that it's looking at.

[00:05:23] Speaker 00:
And so it's fundamentally, I mean not fundamentally, but it's different.

[00:05:26] Speaker 00:
And it's a major difference because the ITP,

[00:05:32] Speaker 00:
it wouldn't be triggered when you have these data transmission packets being sent.

[00:05:38] Speaker 00:
And in Engrit, they have to be sent before that abort timeout would happen.

[00:05:44] Speaker 00:
And so you have a timeout, a timer, a timeout that requires data packages to be sent, which wouldn't happen under the ITP.

[00:05:52] Speaker 00:
And so what we're doing is conserving resources.

[00:05:57] Speaker 00:
So you're not tying up bandwidth, you're not setting packets unnecessarily, you're not using keep-alives that have caused problems about accidentally triggering disconnections and messing up firewalls.

[00:06:09] Speaker 00:
We're trying to avoid all that and basically get the functionality of the keep-alive

[00:06:14] Speaker 00:
without having to actually send it.

[00:06:15] Speaker 00:
And that's by negotiating this idle time period up front where both sides will know, okay, instead of setting out a probe out periodically to see if you're still there, we're just going to agree that this is the amount of time that we're going to stay connected.

[00:06:28] Speaker 03:
Doesn't Egbert do that too, up front?

[00:06:32] Speaker 03:
The two nodes are doing some negotiated, customized...

[00:06:36] Speaker 03:
timeout period?

[00:06:37] Speaker 03:
Yes, yes, but it's a different timeout period.

[00:06:39] Speaker 03:
So that's the same thing as what you just said this invention is about?

[00:06:43] Speaker 00:
No, the difference is that the timeout period that they are negotiating involves data packages being sent during that, while that clock is ticking.

[00:06:51] Speaker 00:
That would not happen in the IPP.

[00:06:53] Speaker 00:
The IPP is inactivity.

[00:06:55] Speaker 00:
They're maintaining connection across, when it's disconnected, for a longer period of time.

[00:07:02] Speaker 03:
I mean, I would agree with your construction if the claim had said an idle time period during which no packet is communicated in the TCP variant connection period.

[00:07:15] Speaker 03:
But the claim keeps going, which is to keep the TCP variant connection active.

[00:07:23] Speaker 03:
In the words of your patent owner response, we've got to now figure out if a packet is being communicated during the idle time period, what is the purpose of that communicated data packet, right?

[00:07:36] Speaker 00:
Yes, and packets can have multiple purposes.

[00:07:39] Speaker 00:
So it's not a singular focus of what a packet is doing.

[00:07:44] Speaker 00:
So a data transmission would start the clock, but it's eliciting an ACK.

[00:07:49] Speaker 00:
The retransmission is making sure, this is a TCP variant, so TCP is a reliable connection.

[00:07:57] Speaker 00:
They're making sure that it's a reliable connection that data gets through.

[00:08:00] Speaker 00:
So the retransmission

[00:08:01] Speaker 00:
gets the data through, it keeps the connection functioning and working, and they're using it.

[00:08:08] Speaker 00:
And it elicits an ACK, and if that ACK comes back, then the ATO would start again.

[00:08:14] Speaker 00:
But that's, again, that's the user timeout.

[00:08:17] Speaker 00:
It's from TCP, and it's different than what we're doing.

[00:08:23] Speaker 00:
And I guess I would like to direct you to JA1688.

[00:08:30] Speaker 00:
And this is the RC 5482 that Egert was a co-author of.

[00:08:41] Speaker 00:
And I think that the distinction about retransmissions, this makes it fairly clear what's going on.

[00:08:50] Speaker 00:
And so it's at the top of 1688.

[00:08:52] Speaker 00:
And it's discussing the absence of an application-specified user timeout.

[00:09:00] Speaker 00:
the TC specification 793 defines a default user timeout.

[00:09:04] Speaker 00:
So, Edgar's using this user timeout and having the two sides negotiate to extend it so that the connection will remain active for longer periods of time.

[00:09:14] Speaker 00:
and it says that RFC 1122, which is the host requirement for internet connections, and it says that, refines that definition, so talking about the user timeout, by introducing two thresholds, R1 and R2.

[00:09:32] Speaker 00:
R2 is greater than R1, and that controls a number of retransmissions or attempts of a single segment, and R2 is

[00:09:43] Speaker 00:
a time value that will timeout.

[00:09:46] Speaker 00:
So you have R1, which is the number of retransmissions that's occurring.

[00:09:51] Speaker 00:
And it has to be smaller than R2, which is the timeout.

[00:09:55] Speaker 00:
And these function together.

[00:09:56] Speaker 00:
So the timeout, the user timeout, as defined in this requirements document, RC 1122.

[00:10:03] Speaker 04:
Where'd you make that argument in your briefs?

[00:10:06] Speaker 00:
We made this argument by pointing to this other portion.

[00:10:12] Speaker 00:
Yes, so 1692.

[00:10:13] Speaker 00:
But this is the point, Your Honor.

[00:10:17] Speaker 00:
This argument about the... I'm sorry.

[00:10:21] Speaker 04:
Where did you make the reference to 1688 in your briefs?

[00:10:25] Speaker 00:
I don't believe that it was.

[00:10:26] Speaker 00:
But this is the point about addressing this new argument that the Board adopted about the

[00:10:31] Speaker 00:
retransmission time are potentially being greater than the board timeout option and not triggering it.

[00:10:37] Speaker 00:
So it goes to that.

[00:10:38] Speaker 00:
And that's the whole point of the prejudice where a new argument was adopted that we never had a chance to address.

[00:10:42] Speaker 03:
That's an alternative finding, right?

[00:10:45] Speaker 03:
The board had multiple pathways to finding these claims unpatentable.

[00:10:51] Speaker 03:
That's correct.

[00:10:51] Speaker 03:
You're talking about a different one than the primary one about

[00:10:56] Speaker 03:
just whether the Egger reference is retransmission packets purpose is to keep the connection active.

[00:11:06] Speaker 00:
Right.

[00:11:07] Speaker 00:
And going back to the purpose, the functionality of a packet, it's how these packets have software programmed and what it does and again it can do multiple things.

[00:11:21] Speaker 00:
And here

[00:11:22] Speaker 00:
it elicits an act that would restart the agritimer.

[00:11:26] Speaker 00:
But it's more than that, too.

[00:11:28] Speaker 00:
It's the transmission that's required to go on while the poor timeout is operating.

[00:11:34] Speaker 00:
It's not an activity as contemplated by our claims.

[00:11:38] Speaker 02:
Thank you.

[00:11:44] Speaker 01:
Good morning, Your Honors.

[00:11:45] Speaker 01:
May it please the Court?

[00:11:47] Speaker 01:
The board properly applied Jenab's construction and made factual findings with respect to Agart.

[00:11:54] Speaker 01:
We believe substantial evidence more than supports the board's factual findings.

[00:11:58] Speaker 01:
Judge Chen, you're absolutely right.

[00:12:00] Speaker 01:
If you look at the board's decision and what they did was they followed faithfully from our perspective their purpose-based construction.

[00:12:09] Speaker 01:
They specified it based on Appendix 408.

[00:12:12] Speaker 01:
Judge Chen, as you pointed out, they were very clear as to what they were arguing with respect to their construction.

[00:12:17] Speaker 01:
They said it's the purpose is to keep the TCP variant connection active.

[00:12:23] Speaker 03:
Is it possible for a packet transmission to serve more than one purpose?

[00:12:27] Speaker 03:
Perhaps it can have dual purposes.

[00:12:30] Speaker 01:
It certainly can your honor but in this instance with respect to the retransmission timer the retransmission is to retransmit the packet as the board found in its decision that the retransmission packet does not actually reset the ATO the board timeout option time period and that right narrowly speaking the retransmission packet by itself does not reset the timeout period

[00:12:56] Speaker 03:
But nevertheless, it's a critical piece, if not, of ultimately keeping the connection alive.

[00:13:05] Speaker 01:
So Your Honor, I would disagree with that.

[00:13:07] Speaker 01:
And the reason for that is, and this goes to the alternative theories, as you mentioned, there were multiple theories here that we presented, is that.

[00:13:15] Speaker 03:
Let's assume for the moment the alternate theory was raised too late and was a surprise theory that shouldn't have been addressed by the board.

[00:13:24] Speaker 03:
So let's just talk about the primary thing.

[00:13:28] Speaker 01:
And I was actually going to stay on the primary argument, Your Honor, and that goes to disconnection.

[00:13:32] Speaker 01:
So if you actually look at the way our arguments were presented, we also pointed to disconnection.

[00:13:37] Speaker 01:
So in the retransmission context,

[00:13:40] Speaker 01:
the retransmission packet may never be sent or received, right?

[00:13:44] Speaker 01:
And that was, again, a factual finding the board made.

[00:13:46] Speaker 01:
And that's at appendix 19 through 22, where the board went through very carefully all of the arguments and rejected that, that even if that was the case, there are scenarios where the retransmission packet might not be sent or received.

[00:14:00] Speaker 01:
So they just simply cannot prevail, even under that theory, the judgment.

[00:14:05] Speaker 03:
Right, but purpose is almost like intent.

[00:14:08] Speaker 03:
What is the intent of this?

[00:14:10] Speaker 03:
transmission of the retransmission packet and of course the primary intent is to get that data that's in that packet over to the other node but there's already a connection that's been established that and there's a race against the clock to avoid it timing out

[00:14:30] Speaker 03:
And it seems to be that necessary piece of avoiding the timeout is to make sure you keep pumping out that retransmission packet until you get an acknowledgment signal on the other side.

[00:14:45] Speaker 01:
So, Your Honor, I would respectfully disagree that the retransmission packet's purpose is to keep the connection alive?

[00:14:52] Speaker 03:
Well, it's perhaps a secondary purpose.

[00:14:54] Speaker 03:
I'm not saying it's the primary purpose.

[00:14:56] Speaker 03:
And that's the question of whether a packet could have dual purposes.

[00:15:01] Speaker 05:
Let me substitute a word, or dual effects, if not dual purposes.

[00:15:07] Speaker 01:
Sure.

[00:15:08] Speaker 01:
And I think what we have to look at is, at the end of the day, what does the claim require here?

[00:15:12] Speaker 01:
The claim is very clear that it's to keep the connection active.

[00:15:16] Speaker 01:
And if you look at the retransmission timer and the retransmission packet, its purpose is to retransmit the data.

[00:15:22] Speaker 01:
That's what it is.

[00:15:24] Speaker 01:
And as the board found, again, looking at all the evidence, it made a factual finding that the retransmission timers does not serve the purpose that they set to the board multiple times what the purpose was for this claim.

[00:15:36] Speaker 01:
And we think, again, under this board's case law, under substantial evidence review, this simply cannot serve past that.

[00:15:42] Speaker 01:
And with respect to the alternative theory, we believe one of the issues that has happened throughout this proceeding is Genome's arguments kept on shifting.

[00:15:56] Speaker 01:
If you look at their patented response, they made one argument.

[00:15:59] Speaker 01:
They actually disclaimed those arguments in their rehearing request and focused exclusively on the retransmission timer.

[00:16:04] Speaker 01:
And the board gave them plenty of opportunity to argue about the retransmission timer.

[00:16:09] Speaker 01:
At the hearing, they were asked questions.

[00:16:12] Speaker 01:
We, of course, were asked the same questions, and we responded to the board's questions.

[00:16:16] Speaker 03:
The burden of proof in this proceeding was on you, right?

[00:16:21] Speaker 03:
Yes, sir.

[00:16:21] Speaker 03:
And this alternative theory, there's no fair way of reading your petition as including this particular theory about the competing timeout period.

[00:16:31] Speaker 03:
Is that also fair to say?

[00:16:32] Speaker 01:
I agree, Your Honor.

[00:16:34] Speaker 01:
I think if you look at our petition in the opening petition, what we relied on was the disconnection theory and, of course, the ATO time period.

[00:16:42] Speaker 01:
And I think my point with respect to the extent you want to call it a theory or whatever words we want to use here, it's consistent with what we argued to the board.

[00:16:50] Speaker 01:
In fact, that disclosure is on the same page of EGERT as what we pointed out for the ATO.

[00:16:58] Speaker 01:
So if you, again, depending on how you define theory,

[00:17:02] Speaker 01:
It did not change, right?

[00:17:04] Speaker 01:
Our point always was that retransmission packets might never exist, because there's a disconnection.

[00:17:10] Speaker 01:
And what they did was, again, the arguments kept on shifting.

[00:17:13] Speaker 01:
And I think it's telling, even on appeal, as Judge Prosu pointed out, the directly or indirectly language was not in their Patent Honor response.

[00:17:21] Speaker 01:
So this has been a moving target for us and the board.

[00:17:25] Speaker 01:
And we think they had plenty of opportunity to address these arguments.

[00:17:28] Speaker 01:
But we don't need that judgment to win here.

[00:17:31] Speaker 01:
We think this court can affirm based on the primary basis that the board found, which was that this is a purpose-based construction.

[00:17:39] Speaker 01:
The board adopted it.

[00:17:40] Speaker 01:
It faithfully applied it.

[00:17:42] Speaker 01:
It made factual findings based on expert testimony and the references.

[00:17:46] Speaker 01:
And that's more than enough to affirm.

[00:17:48] Speaker 01:
Unless your honors have any other questions, I'm happy to give the court.

[00:17:51] Speaker 05:
I Just want to address it a few points counsel we haven't addressed your procedural arguments For example We're in the record below Did you complain about any lack of notice or a procedural violation to the board?

[00:18:15] Speaker ?:
I

[00:18:16] Speaker 00:
You're out of what one of the procedure violation became clear with respect to the new argument that was introduced oral argument only when we received the denial of our request for re-hearing.

[00:18:28] Speaker 00:
So didn't really have an opportunity to address that.

[00:18:32] Speaker 05:
Is that your same answer regarding your APA objection?

[00:18:36] Speaker 00:
Well, that is when we got the decision.

[00:18:38] Speaker 00:
Again, we were hoping and we've got the

[00:18:42] Speaker 00:
board would respond to our claim construction arguments.

[00:18:46] Speaker 00:
But we've got no explanation still.

[00:18:48] Speaker 00:
So we're just left in the dark about why the language with or without a condition or via any mechanism would not have a retransmission packet that elicits one step removed from doing it directly, elicits an act to keep a connection active, why that would not follow that construction.

[00:19:08] Speaker 00:
The board just didn't address that language.

[00:19:10] Speaker 05:
So any opinion?

[00:19:12] Speaker 05:
which Council finds confusing is an APA violation?

[00:19:17] Speaker 00:
I think there is a difference between just not addressing it whatsoever or addressing it and just not being clear to Council.

[00:19:24] Speaker 05:
Isn't there an implication if something's not addressed that it was not worth addressing?

[00:19:29] Speaker 00:
I think that we're entitled to an explanation and I think that the Court is as well so that it can understand what the Board's reasoning.

[00:19:37] Speaker 00:
I wanted to make one point about purpose that we've talked about a lot.

[00:19:43] Speaker 00:
this apparatus is being claimed.

[00:19:44] Speaker 00:
It's not actually functioning the way when it's claimed.

[00:19:48] Speaker 00:
It's an apparatus with software that has this idle time period.

[00:19:53] Speaker 00:
And so these packets, we talked about this time period.

[00:19:57] Speaker 00:
What it's saying is these packets are being sent to do something, but it's more the technological environment that this claim is in.

[00:20:06] Speaker 00:
And another point about that, this disconnect hypothetical

[00:20:11] Speaker 00:
The claim, the way it's worded and set up, the ITP, it doesn't matter if it's disconnect or not.

[00:20:18] Speaker 00:
This connect's not required by the claim.

[00:20:20] Speaker 00:
So it has to function the same way when there's actually connectivity.

[00:20:23] Speaker 00:
And so in that case, if retransmission packets are considered to

[00:20:28] Speaker 00:
qualify as packets to keep the connection active then their disconnect hypo is irrelevant because the claim it wouldn't it doesn't cover the situation where there is connectivity which is required as the way it's climbing the negative limitation so with that unless you aren't at any other questions